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decided: September 19, 1973.


Appeal from decree of Commonwealth Court, No. 262A, Transfer Docket 1970 (original jurisdiction initially commenced in Court of Common Pleas of Dauphin County, No. 2823, Equity Docket No. 367, Commonwealth Docket 1967), in case of Pennsylvania Public Utility Commission v. Borough of Akron.


Philip P. Kalodner, with him Edward Munce, Anthony L. Marino and Alan R. Squires, for Pennsylvania Public Utility Commission, appellant.

Eugene J. Brew, Jr., and Dale and Brew, for Harborcreek Township, amicus curiae.

W. Russel Hoerner, with him Kenelm L. Shirk, Jr., Shearer, Mette, Hoerner & Woodside, and Shirk & Reist, for Borough of Akron, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen dissents. Mr. Justice Manderino took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Jones.

Author: Pomeroy

[ 453 Pa. Page 556]

The Pennsylvania Public Utility Commission [hereinafter the "P.U.C." or "the Commission"] here appeals a decision of the Commonwealth Court entered August 5, 1971*fn1 in which that court held that the P.U.C. was without power (upon the complaint of a third person) to order a municipality which supplies water services to its citizens and to customers within a certificated extraterritorial area to extend its services to customers located beyond such certificated area.

The background of this litigation is protracted and requires some explanation. In January of 1958 the appellee Borough of Akron filed an application with the Commission in which it sought a certificate of public convenience authorizing it to furnish water service to the public within a designated portion of West Earl Township, Lancaster County, an area adjacent to but outside of the corporate limits of Akron. The Commission

[ 453 Pa. Page 557]

    granted that certificate. On May 4, 1967, one Mahlon Zimmerman, the owner of a tract of land adjacent to the Akron-served area in West Earl Township, filed a complaint with the Commission in which he charged, in sum, that the Borough of Akron had unlawfully refused to extend water service to his land. The Borough filed with the Commission a preliminary objection, questioning the power of the Commission to order an extension of service beyond that area served under the certificate of authority issued in 1958. The Commission denied the motion and entered an order setting August 30, 1967, as a hearing date.

The Borough, nine days before that scheduled hearing date, filed an action in equity in the Court of Common Pleas of Dauphin County, Commonwealth Docket, in which it sought to enjoin the Commission from proceeding to hold the scheduled hearing. A preliminary objection to the jurisdiction of the Dauphin County Court filed by the Commission was denied, and that interlocutory order was affirmed by this Court on an appeal taken by the Commission. Akron Borough v. Pennsylvania Public Utility Commission, 441 Pa. 9, 270 A.2d 393 (1970).*fn2 Shortly after our decision on that appeal, the matter was transferred from the Court of Common Pleas to the docket of the newly-created Commonwealth Court (Dec. 4, 1970). The plaintiff-Borough sought and obtained a preliminary injunction (Jan. 8, 1971) and the Commonwealth Court granted the plaintiff's motion for judgment on the pleadings (Aug. 5, 1971), thus making the preliminary injunction final.*fn3 For the reasons given hereafter, we will vacate

[ 453 Pa. Page 558]

    the decree of the Commonwealth Court and remand with direction to dismiss the Borough's complaint in equity.


[ 453 Pa. Page 559]

We begin by noting that the earlier decision by this Court, supra, dealt only with the question of whether the Dauphin County Court (now the Commonwealth Court) had power to entertain an action brought by the Borough of Akron in which the Borough sought to prevent the very occurrence of an administrative proceeding. Finding the existence of such power in a section of the Public Utility Law,*fn4 we held, consistent with an earlier decision in York Railways Company v. Page 559} Driscoll, 331 Pa. 193, 200 A. 864 (1938), that "equity has jurisdiction over the cause of action raised by the Borough's complaint. . . ." 441 Pa. at 16. We did not by our earlier decision intimate a view on the merits, nor did we deal with the propriety of granting either a final or a preliminary injunction: "[A]t this stage of the proceedings we are not deciding the merits of this controversy; we are not deciding whether a final decree prohibiting the Commission from proceeding would be affirmed." 441 Pa. at 13 (emphasis added). It is open to us today, therefore, without infringement on the doctrines of res judicata or "law of the case", to examine, not the question of whether the court below had power to entertain the Borough's action, but the question of whether, under the circumstances of the case, that admitted jurisdiction should have been exercised.*fn5 We have concluded that the Commonwealth Court erred in approaching the question on remand as solely that of jurisdiction vel non in the Commission to hold a hearing on Mahlon Zimmerman's complaint and, in so doing, bypassed a most important principle of judicial-administrative relationships.

[ 453 Pa. Page 560]

    might be corrected, made it unnecessary to invoke the extraordinary remedy of prohibition.*fn7 It is true, however, that prohibition can be utilized to prevent the assertion by an inferior tribunal of a clearly erroneous claim of jurisdiction. See, e.g., Schlesinger Petition, 367 Pa. 476, 81 A.2d 316 (1951); Communist Party Petition, 365 Pa. 549, 75 A.2d 583 (1950); Park's Petition, 329 Pa. 60, 196 A.2d 495 (1938); McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). As one text expressed the thought:

"The purpose of prohibition is to shut off the necessity of going through a hearing, a trial, before a tribunal that has no power to deal with the subject matter at all. Prohibition is not appropriately used to forestall a merely erroneous exercise of jurisdiction. On the other hand, it exactly fills the bill if the tribunal can in no circumstances whatsoever act validly as to the subject matter involved in the hearings it proposes to conduct.

"The point can be made clear by an admittedly extreme example. It is as though a justice of the peace, empowered to hear only petty cases such as those involving traffic law violations, were to summon parties before him in order to decide whether a divorce decree should be granted. In such an instance the defendant would not have to suffer as patiently as possible through a hearing before a powerless tribunal and then seek to set aside its empty judgment; instead, he could stop the nonsense at the outset by obtaining a writ of prohibition." Gellhorn & Byse, Administrative Law 138 (1970).

[ 453 Pa. Page 562]

Under the Public Utility Law, as amended by the Act of June 3, 1971, P. L. 118, No. 6, § 1, 66 P.S. § 1431 (Supp. 1973-74), there exists an adequate remedy in the form of an appeal from any final order the Commission might make after a hearing held on Zimmerman's complaint.*fn8 We do not think that the trouble and expense caused to appellee Akron in participating in a Commission proceeding leading to a final and appealable order makes the remedy of appeal less than adequate. That expense is "part of the social burden of living under government," Bradley Lumber Co. v. National Labor Relations Board, 84 F. 2d 97, 100 (5th Cir. 1936), and is an "inadequate basis for intervention whether by mandamus or injunction". Whitehouse Page 563} v. Illinois Central Railroad Co., 349 U.S. 366, 374, 99 L. Ed. 1155 (1955) (Frankfurter, J.).

The question of power in the Commission to order an unwilling municipality to provide water service beyond its certificated extraterritorial service area is of first impression and is difficult; certainly this assertion of power by the Commission cannot be labeled clearly erroneous.*fn9

There is no doubt, therefore, that had the appellee Borough attempted to prevent the Commission from proceeding by petitioning this Court for a writ of prohibition, we would deny the writ on the strength of cases such as Carpentertown, supra. The question, therefore, becomes one of determining whether there is any reason to say that the Commonwealth Court, acting under 66 P.S. § 1441, should do otherwise.


It is clear that the courts of common pleas of this Commonwealth as a general proposition lack the power to prohibit inferior tribunals from proceeding. See, e.g., Carbon County v. Leibensperger, 439 Pa. 138, 266 A.2d 632 (1970); Pa. Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963). At the time of enactment of the Public Utility Law of 1937, it was therefore necessary specifically to empower the Dauphin

[ 453 Pa. Page 564]

County Court to enjoin the Commission "in a proceeding questioning the jurisdiction of the commission", but only "after cause shown" and "upon a hearing".*fn10 While it is true that this statutory provision speaks of an "injunction" and not of the common law power of prohibition, we think that the semantical difference is without significance. That prohibition is historically a legal and not an equitable remedy is a fact not well understood.*fn11 Consequently, this Court in the past has been astute to recognize that petitions praying for "injunctions" may in fact be imperfectly framed requests for writs of prohibition. For example, in Carbon County v. Leidensperger, 439 Pa. 138, 140, 266 A.2d 632 (1970), we remarked:*fn12 "Although this suit was brought in equity and sought an injunction to restrain appellant [a magistrate] from proceeding with the suit for costs, in actuality it was a request for a writ of prohibition. The writ of prohibition is the facility by which this Court exercises superintendence over inferior courts and keeps inferior courts within the limits of their rightful powers and jurisdiction. . . ." We therefore think that when the General Assembly spoke in 66 P.S. § 1441 of an "injunction" to be issued only "after cause shown", it did not intend to create any different test for determining in what circumstances a

[ 453 Pa. Page 565]

    superior court (here the Commonwealth Court) would be justified in prohibiting proceedings in an inferior tribunal.*fn13 It follows, for reasons set forth in part II, supra, that the Commonwealth Court erred in approaching the question of jurisdiction without reference to other considerations (i.e., adequacy of remedy on appeal and clarity of error in the Commission's assertion of jurisdiction).

Although Mahlon Zimmerman filed his complaint with the Commission in 1967, as of this date there has been no determination of what would be required in furnishing his tract with the Borough of Akron's water. We do not know the relevant facts; for example, how far his land lies from existing conduits and reservoirs; whether additional pumping stations would be required; whether additional storage facilities would be constructed; what portion of these costs would be borne by Zimmerman. The Borough both below and in this Court argues that it would be an unconstitutional taking of property without due process of law for the Commission to possess the jurisdiction here asserted. The line between constitutional regulation and unconstitutional taking is almost never discernible in the absence of a concrete factual situation. That this case should reach the highest appellate court of this State six years after its commencement without resolution of such factual issues is itself strong argument against ignoring the traditional and discretionary limitations on the use of a remedy in the nature of prohibition. We hold that in view of the adequacy of the Borough's remedy by appeal during which the question of jurisdiction

[ 453 Pa. Page 566]

    in the Commission can be raised and in view of the closeness of the question of the Commission's power to order an extension of the Borough's extraterritorial service area, the Commission should have been permitted to proceed to a hearing on the Zimmerman complaint.

The decree of the Commonwealth Court is reversed and the matter is remanded with direction to dismiss appellee's complaint in equity.

It is so ordered. Costs to be equally divided by the parties.


Decree vacated and matter remanded with directions.

Dissenting Opinion by Mr. Chief Justice Jones:

I would affirm the order of the Commonwealth Court. I believe the question of jurisdiction should be decided at this stage.

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