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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (04/10/75)

decided: April 10, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, HAROLD D. AND CATHERINE M. MCCOY, INTERVENING PARTY-APPELLANTS, THE POTOMAC EDISON COMPANY, INTERVENING APPELLEE. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, V. HAROLD D. AND CATHERINE M. MCCOY, APPELLANTS, THE POTOMAC EDISON COMPANY, INTERVENING APPELLEE



Appeals from the Orders of the Pennsylvania Public Utility Commission in cases of In Re: Applications of The Potomac Edison Company of Pennsylvania, Docket Nos. 97560 and 97562.

COUNSEL

Dennis J. Harnish, Special Assistant Attorney General, for appellant, Department of Environmental Resources.

S. Berne Smith, with him McNees, Wallace & Nurick, for appellants, McCoy.

Michael P. Kerrigan, Assistant Counsel, with him Peter Brown, Counsel, for appellee, Pennsylvania Public Utility Commission.

J. L. Doyle, with him Maxwell & Bridgers, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Concurring Opinion by President Judge Bowman. Concurring Opinion by Judge Kramer.

Author: Mencer

[ 18 Pa. Commw. Page 561]

We have for our consideration three related appeals from two final orders of the Pennsylvania Public Utility Commission (Commission) approving applications and granting certificates of public convenience and necessity to The Potomac Edison Company (Potomac) for the right to proceed in eminent domain for an electric transmission line right-of-way across the Franklin County properties of George H. Barmont and Mildred R. Barmont (Barmont) and of Harold D. McCoy and Catherine M. McCoy (McCoy). The Barmont and McCoy properties are contiguous. Consolidated hearings were held on the two applications. Over objection by Potomac, the Commission permitted the Department of Environmental Resources (DER) to intervene in the proceedings relating to the McCoy property.*fn1

The orders which are the subject of these appeals were both adopted August 6, 1974. DER appealed from the order relating to the McCoy property, and McCoy filed an appeal from each order.*fn2 We consolidated these three appeals for argument, and we affirm both orders of the Commission.

Potomac proposes to construct approximately 18.94 miles of electric transmission line on wooden pole H-frame structures. The proposed line would commence in Guilford Township, Franklin County, and terminate in Ayr Township, Fulton County, and would traverse over a proposed right-of-way which would cross the Barmont and McCoy properties. McCoy and DER do not contest the Commission's conclusions that there is a need for the proposed line.

[ 18 Pa. Commw. Page 562]

The issues raised in these appeals relate to the selection of the line location as it affects the Barmont and McCoy properties, whether the proper standards were employed in evaluating the propriety of the route selected, and whether the evidence supports the Commission's conclusion to approve the route selected by Potomac.

The scope of our review is narrow. Our inquiry is as to whether the Commission's orders granting certificates of public convenience should be vacated or set aside for error of law or lack of supporting evidence or for violation of constitutional rights. Public Utility Law, Act of May 28, 1937, P.L. 1053, § 1107, as amended, 66 P.S. § 1437. We may not exercise our independent judgment on the record. Clemmer v. Pennsylvania Public Utility Commission, 207 Pa. Superior Ct. 388, 217 A.2d 800 (1966). If there is substantial evidence in support of the order of the Commission, we may not set it aside. Substantial evidence is such relevant evidence as a reasonable mind can accept as adequate to support a conclusion.

As we stated in Lesher v. American Telegraph and Telephone Company, 1 Pa. Commonwealth Ct. 522, 525, 276 A.2d 325, 326-27 (1971), when considering a companion and comparable act empowering telephone and telegraph companies to appropriate private real estate for the construction, erection, operation, or maintenance of their lines:

"The selection of the right-of-way is a matter for the public utility and will not be set aside unless the powers conferred upon the public utility are wantonly, capriciously or arbitrarily exercised. West Penn Power Co. v. Pennsylvania Public Utility Commission, 199 Pa. Superior Ct. 25, 184 A.2d 143 (1962). The failure to select a route which would reduce the inconvenience to the landowners does not constitute grounds for withholding the exercise of

[ 18 Pa. Commw. Page 563]

    the power to condemn the easement. Stone v. Pennsylvania Public Utility Commission, 192 Pa. Superior Ct. 573, 162 A.2d 18 (1960). In Schenck v. Pittsburgh, 364 Pa. 31, 36, 70 A.2d 612, 614 (1950), we find the standard for the proper exercise of the power of eminent domain when the Court stated: 'It has been held in many cases that where the right of eminent domain is vested in a municipality, an administrative body, or even a private corporation, the question as to whether the circumstances justify the exercise of the power in a given instance is not a judicial one, at least in the absence of fraud or palpable bad faith.'"

In Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 338 n. 1, 105 A.2d 287, 294 n. 1 (1954), it was stated:

"'. . . "Under a delegation of the power of eminent domain the grantee of the power, in the absence of legislative restriction, may determine the location of the land [to be] acquired, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respect beyond the privilege conferred by the charter or statute. The landowner cannot raise the ...


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