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PHILADELPHIA ELECTRIC COMPANY v. CARR (03/09/72)

decided: March 9, 1972.

PHILADELPHIA ELECTRIC COMPANY
v.
CARR



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Philadelphia Electric Company v. Cecelia J. Carr, wife of John Carr, deceased, No. 524, January Term, 1971.

COUNSEL

Robert J. Sugarman, with him Bernard A. Ryan, and Dechert, Price & Rhoads and Harold B. Vikoren, for appellant.

Robert F. Ruehl, with him William M. Power and Power, Bowen & Valimont, Edward G. Bauer, Jr., and Donald Blanken, for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three.

Author: Per Curiam

[ 4 Pa. Commw. Page 573]

The orders of the Court of Common Pleas of Bucks County approving the condemnation bond filed by Philadelphia Electric Company and dismissing appellant's exceptions and preliminary objections to approval of said bond are affirmed upon the opinion of Judge Robert M. Mountenay. Judge Mountenay's opinion follows:

"This case represents but one aspect of a lengthy controversy between the Philadelphia Electric Company, condemnor herein, and a number of citizens of Bucks County relative to the construction of a high tension electric transmission line through a portion of this county.

"In this particular case, the condemnor filed an application with the Public Utility Commission on October 17, 1968, pursuant to the provisions of Section 322 of the Act of May 5, 1933, P.L. 364, as supplemented and amended, 15 P.S. § 1322(C), for a determination that the service to be furnished through the condemnor's power of eminent domain in this particular instance was necessary or proper for the service, accommodation, convenience or safety of the public. The condemnee opposed this application in the proceedings before the Public Utility Commission contending generally that the location of the proposed right of way was not suitable. Nevertheless, after hearing, the Public Utility Commission, on May 4, 1970, issued a certificate to the effect that the proposed facilities were necessary or proper for the service, accommodation or safety of the public, thereby enabling the condemnor to proceed with the taking of the subject premises. The order of the Public Utility Commission was not appealed.

"Thereafter, the condemnor filed in this court a petition for approval of bond in accordance with the provisions of Section 41 of the Act of April 29, 1874, P.L.

[ 4 Pa. Commw. Page 57473]

, as amended, 15 P.S. § 3022. Condemnee thereupon interposed a pleading denominated 'Exceptions and Preliminary Objections to Petition for Approval of Bond' raising the issues hereinafter discussed. The undersigned dismissed the condemnee's pleading and approved the condemnor's bond, whereupon the condemnee appealed.

"The condemnation in question involves the construction of an electric transmission line through what condemnee asserts is a scenic and historic area. Accordingly, the first objection raised by the condemnee's pleading is essentially that the condemnor acted in an arbitrary and capricious manner in selecting the location of the proposed right of way in general and in selecting the location of a certain supporting tower or structure on condemnee's land in particular. Secondly, the condemnee objects that the condemnor failed to comply with the notice requirements of Section 405 of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, 26 P.S. § 1-405. No question as to the sufficiency of the bond is raised.

"We shall first address ourselves to the problem of notice. Whether the condemnor is required to comply with the notice provisions of Section 405 of the Eminent Domain Code will depend upon whether and to what extent the Eminent Domain Code is applicable to these proceedings. Section 901 thereof, 26 P.S. § 1-901, reads in pertinent part as follows: 'This act shall not . . . repeal, modify or supplant any law insofar as it confers the authority or prescribes the procedure for condemnation of rights-of-way or easements for occupation by water, electric, gas, oil and/or petroleum products, telephone or telegraph lines used directly or ...


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