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AKRON BOROUGH v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (09/19/73)

decided: September 19, 1973.

AKRON BOROUGH
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLANT



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.

COUNSEL

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 ...


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