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WESTERN PENNSYLVANIA WATER COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (02/28/77)

SUPREME COURT OF PENNSYLVANIA


decided: February 28, 1977.

WESTERN PENNSYLVANIA WATER COMPANY
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLANT

COUNSEL

Peter W. Brown, Counsel, Dominic J. Ferraro, Asst. Counsel, Harrisburg, for appellant.

Gregory M. Harvey, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, and Nix, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts, J., filed a dissenting opinion in which Jones, C. J., joins.

Author: Pomeroy

[ 471 Pa. Page 349]

OPINION OF THE COURT

In this appeal we are again asked by the Pennsylvania Public Utility Commission to establish the proposition that the Commission has been statutorily empowered to order a public utility to extend its service to customers located outside of its certificated service area. In an earlier litigation, the Commonwealth Court held the Commission powerless so to order. Akron v. Pa. P.U.C., 2 Pa. Commw. 625 (1971). This Court vacated the order of the Commonwealth Court in that case, but for a procedural reason which did not reach the merits of the Commission's contention. Akron Borough v. Pa. P.U.C., 453 Pa. 554, 310 A.2d 271 (1973). In this case, the Commonwealth Court has again held that the Commission lacks that power. Western Pennsylvania Water Company v. Pa. P.U.C., 10 Pa. Commw. 533, 311 A.2d 370 (1973). We granted allocatur because of the important question of administrative law presented. On this record

[ 471 Pa. Page 350]

    we again do not reach the merits of the question of agency power which is tendered, but remand for further proceedings.

I.

A brief historical summary is in order:

In 1966 the Commission, departing from its own precedents, ordered a municipality, operating as a public utility beyond its own boundaries but within a certificated service area, to provide water service to a customer located outside the certificated area. Hoffman v. City of Erie, 42 Pa.P.U.C. 656 (1966). Two years later, the Commission entered a similar order against a privately-owned water company. Kriley v. Butler Water Company, 43 Pa.P.U.C. 586 (1968). Neither of these orders of the Commission was appealed to a court.

In 1967 a private citizen filed a complaint with the Commission against Akron Borough, a municipal corporation which was acting as a public utility in providing water service beyond its municipal boundaries but within a certificated service area, seeking to obtain an extension of service to land of the complainant. The Commission undertook to hear and determine that complaint, but Akron Borough filed a suit within the original jurisdiction of the Commonwealth Court and sought an injunction against the Commission so proceeding.*fn1 The Commonwealth Court held the Commission powerless to act and granted the injunction.*fn2 On appeal to this Court, we vacated the injunction and remanded with direction to dismiss the Borough's complaint. It was our view that the

[ 471 Pa. Page 351]

Legislature, in enacting the provision of the Public Utility Law authorizing such suits, did not "intend to create any different test for determining in what circumstances a superior court . . . would be justified in prohibiting proceedings in an inferior tribunal" than is customarily applied in determining whether a common law writ of prohibition would issue. 453 Pa. at 564-65, 310 A.2d 271. We noted that absent some administrative hearing at which the facts underlying a complaint seeking service extension might be established, we were being asked to interpret the Public Utility Law and to weigh constitutional questions in vacuo.*fn3

In 1972, subsequent to the Commonwealth Court's opinion in Akron Borough (1971) but prior to this Court's opinion in Akron Borough (1973), appellee here, the Western Pennsylvania Water Company, a private public utility corporation, filed an application with the Commission for a certificate of public convenience permitting the company to provide water service to 17 additional customers along a short stretch of road in Butler County outside of its certificated area. The application was routine and was unopposed; no hearing on it was held. On February 13, 1973, the Commission granted

[ 471 Pa. Page 352]

    the application, but subject to a condition which was as follows:

"It being a condition of such certification that Western Pennsylvania Water Company recognize, and accede to, the right of the Commission to order extension of service in the future should such be appropriate in the Commission's view."

The Water Company refused to accept the certificate so conditioned, and appealed to the Commonwealth Court.*fn4 In a "long form" opinion and order dated May 1, 1973,*fn5 the Commission frankly stated that its purpose in including the condition was to avoid the Commonwealth Court's holding in Akron Borough that the Commission was without power to order a utility to provide service beyond its certificated service area.

The Commonwealth Court, as earlier stated, held the Commission to be without such jurisdiction and hence powerless to insist on the condition. The court therefore vacated that portion of the Commission's May 1, 1973 order which set forth the disputed jurisdictional condition above quoted, but affirmed in all other respects.

II.

It comes as a surprise that the Commission should seek to avoid the Commonwealth Court's holding in Akron Borough by insisting that a utility such as appellee subscribe to a concept of the Commission's power which is the exact opposite of that entertained by that court.*fn6 Administrative agencies are creatures of the legislature

[ 471 Pa. Page 353]

    and have only those powers which have been conferred by statute. Day v. Public Service Commission, 312 Pa. 381, 167 A. 565 (1933); Community College of Delaware County v. Fox, 20 Pa. Commw. 335, 342 A.2d 468 (1975); City of Pittsburgh v. Milk Marketing Board, 7 Pa. Commw. 180, 299 A.2d 197 (1973). An administrative agency cannot by mere contrary usage acquire a power not conferred by its organic statutes. Commonwealth v. American Ice Co., 406 Pa. 322, 178 A.2d 768 (1962). It is settled that jurisdiction of a court cannot be extended or conferred by agreement. Calabrese v. Collier Township Municipal Authority, 430 Pa. 289, 240 A.2d 544 (1968); Appeal of Kramer, 445 Pa. 238, 282 A.2d 386 (1971); McConnell v. Schmidt, 234 Pa. Super. 400, 339 A.2d 578 (1975); Employees of Oil City Hospital v. Service Employees International Union, Local 227, AFL-CIO, 18 Pa. Commw. 192, 335 A.2d 537 (1975); it must follow, a fortiori, that an administrative agency cannot acquire jurisdiction by agreement. Nor is it for the agency to seek to create or assure its own jurisdiction by insisting that applicants subscribe to the agency's view of what public policy requires. Drexelbrook Associates v. Pa. P.U.C., 418 Pa. 430, 212 A.2d 237 (1965).*fn7

[ 471 Pa. Page 354]

It follows that the Commission, in attempting to insert the disputed jurisdictional condition into the certificate of public convenience, was engaging in a futile act. If, the Commonwealth Court to the contrary, the legislature has in fact endowed the Commission with the power it claims, then the condition would be a truism. If the Commission has no such jurisdiction, then the attempt to create such jurisdiction by agreement with the Water Company would be invalid. We are of the view that the Commission's attempt to resolve a dispute of statutory jurisdiction by imposition in a certificate of a condition supportive of its view is an error of law. See 66 P.S. § 1437 (1959).*fn8

[ 471 Pa. Page 355]

Because we must reject the Commission's attempt to settle a difficult question of its own jurisdiction in the fashion it has here employed, we must decline once again, as we did in Akron Borough, to pass upon the merits either of the Commission's claim of jurisdiction to order a utility to extend service to a point beyond its certificated service area, or of the Water Company's claim that its constitutional rights would be infringed and its property unlawfully confiscated were the Commission to exercise the power it asserts. As we observed in our Akron Borough decision, "[t]he line between constitutional regulation and unconstitutional taking is almost never discernible in absence of a concrete factual situation." 453 Pa. at 565, 310 A.2d at 277. Regrettably, we again have no "concrete factual situation" from which to adjudicate either the jurisdictional or constitutional issues which are involved.*fn9

[ 471 Pa. Page 356]

While we do not understand from this record that there are facts connected with the instant application which might have caused the Commission to refuse to grant a certificate without the disputed condition, we nevertheless recognize that the possibility exists. See 4 K. C. Davis, Administrative Law Treatise, § 2910 at 183-84 (1958). Rather than affirm the order of the Commonwealth Court which excised the disputed condition from the P.U.C.'s order and affirmed the order as thus altered, we will vacate the order of the Commonwealth Court and vacate the order of the Commission granting the certificate of public convenience, and remand to the Commission for further proceedings consistent with this opinion.

It is so ordered.

ROBERTS, Justice, dissenting.

The issue presented is whether the Pennsylvania Public Utility Commission (PUC) has the authority to condition a grant of a certificate of public convenience upon an agreement by a utility to permit the PUC to order future extensions of service beyond the certificated area.*fn1 A necessarily related question is whether the PUC has the authority to order a utility to provide service beyond

[ 471 Pa. Page 357]

    a previously granted certificated area, even without a condition in the certificate.*fn2

The majority expressly declines to decide whether the PUC can order extensions of service but, nonetheless, holds the condition invalid and remands to the PUC to determine if it would grant the certificate without the condition. I cannot agree with the majority's refusal to reach the issue of the PUC's authority. The question is ripe for adjudication and must be decided to reach a proper disposition. In my view the PUC has the authority to order extensions of service beyond the boundaries of previously granted certificated areas. I would therefore sustain the order of the PUC.

Western Pennsylvania Water Company (Water Company) applied for a certificate of public convenience authorizing them to provide water service to seventeen residents in a described area in Summit Township. The PUC issued a short form order granting the certificate, with the following condition attached:

"It being a condition of such certification that Western Pennsylvania Water Company recognize, and accede to, the right of the Commission to order extension of service in the future, should such be appropriate in the Commission's view."

The PUC thereafter issued a long form order setting forth reasons in support of its previous order. The Water Company appealed the inclusion of the condition in

[ 471 Pa. Page 358]

    the certificate. The Commonwealth Court struck the condition and affirmed the orders in all other respects. Western Pennsylvania Water Company v. Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission, 10 Pa. Commw.Ct. 533, 311 A.2d 370 (1973). The PUC petitioned this Court for review and we granted allocatur.

I

The condition challenged by the Water Company requires no more than that the Water Company recognize and accept the statutory authority of the PUC to order it to extend services beyond the boundaries of its previously granted certificated areas. An extension order would issue after notice and hearing pursuant to provisions set forth in the Public Utility Law.*fn3 The long form order suggests and the PUC's brief confirms the Commission's agreement with this specific and limiting interpretation.*fn4

A determination of the PUC's authority to order extensions is therefore necessary to decide the validity of the condition. The majority, however, strikes the condition without determining the PUC's authority to order extensions. Instead, it devotes much attention to rebuking the PUC for attempting to circumvent the Commonwealth Court's holding in Akron v. Pa. PUC, 2 Pa. Commw.Ct. 625 (1971), rev'd sub nom., Akron Borough v. Pa. PUC, 453 Pa. 554, 310 A.2d 271 (1973). In Akron the Commonwealth Court held that the PUC lacked the authority to order extensions of service beyond the boundaries of a previously granted certificated area. The majority asserts that the PUC promulgated the condition involved

[ 471 Pa. Page 359]

    here in an effort to circumvent the Commonwealth Court's decision. After the condition was promulgated, however, this Court reversed the decision of the Commonwealth Court and declined to resolve the question of the PUC's authority to order extensions. Thus, there is no decision, binding on the PUC, denying it the authority it asserts in the condition. The propriety of any effort by the PUC to circumvent the Commonwealth Court decision, reversed by this Court in 1973, and of questionable relevance in any event,*fn5 is simply not before us.

The majority concludes that the condition may be eliminated without deciding whether the PUC has the authority the condition asserts. It reasons that if the PUC does not have the authority to order extensions under its statutory grant, it cannot obtain such authority by agreement or condition. In the alternative, the majority states that if the PUC does indeed have the authority it asserts, the condition is a "truism," which may be stricken from the order.

A finding that the PUC does not have the authority to order extensions, and could not gain such authority by agreement, would be consistent with an order striking the condition. But a finding that the condition is a "truism" would not support the majority's result. If the condition is a "truism," the majority is not justified in striking it from the order. It is not the province of this Court to rewrite PUC orders. An order of the PUC cannot be vacated, in whole or in part, unless the Court finds error of law, lack of evidence to support the findings,

[ 471 Pa. Page 360]

    or violation of constitutional rights.*fn6 This Court does not have the power to strike what it considers a "truism" from a lawful PUC order.*fn7 Because the validity of the condition depends upon the statutory powers of the PUC, this Court cannot properly decide the present

[ 471 Pa. Page 361]

    controversy without reaching the merits of the PUC's contention that it has the power to order service extensions beyond the lines of an existing certificated area.*fn8

II

The majority states that it is unwilling "on this record" to decide whether the PUC has authority to order service extensions, and that this issue is not ripe for adjudication. However, the record is in fact complete, the PUC's power to order extensions is at issue, and must be decided to properly determine the validity of the condition.

The basic principle of ripeness is that "[j]udicial machinery should be conserved for problems which are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote."*fn9 The doctrine seeks

". . . to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."

Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In Abbott Laboratories, Justice Harlan, writing for the Court, stated that the determination of ripeness requires an evaluation of "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149, 87 S.Ct. at 1515.*fn10

[ 471 Pa. Page 362]

Applying these criteria, this case is ripe. First, the issue is fit for judicial decision. The Water Company is not arguing that a particular order of the PUC may go too far, but that any order to extend service beyond the boundaries of a previously granted certificated area exceeds the statutory limits of the PUC's authority. Resolution of this issue requires an interpretation of the Public Utility Law, upon which the facts of a given case will have little bearing.*fn11 Like the issue in Abbott Laboratories, it is a "purely legal" question. 387 U.S. at 149, 87 S.Ct. at 1515. Another factor supporting the conclusion that the issue is presently fit for judicial decision is that it arises from a final agency action. Inclusion of the condition in the certificate, after formal agency action, is analogous to the promulgation of a regulation which has not yet been invoked in an enforcement proceeding. Such regulations, when they have an imminent and substantial impact on the parties, are reviewable.*fn12

The refusal of the majority to decide the controlling question in the case creates hardship and unnecessary burdens for both the Water Company and the PUC. The

[ 471 Pa. Page 363]

Water Company has applied for a certificate to provide services to seventeen residents outside its present certificated area. The certificate has been offered with a condition the utility considers invalid. The Water Company has rejected the condition and is entitled to know whether the PUC can properly deny its application on the basis of that rejection.*fn13 Additionally, the PUC is hindered by uncertainty as to the scope of its authority in carrying out the public interest objectives of the Public Utility Law. If the PUC is correct, continued delay denies it the use of a legislatively sanctioned power to serve and protect the consuming public's interest.*fn14

The PUC's action is final, the issue raised is appropriate for judicial review, and refusal to decide the issue creates a hardship for the parties. Hence, the PUC's authority to order extensions of service, an issue which must be reached to determine the validity of the condition, is ripe for adjudication.*fn15

[ 471 Pa. Page 364]

III

In order to adjudicate the validity of the condition challenged by the Water Company, it is necessary to decide whether the Public Utility Law authorizes the PUC to order a utility to extend service beyond the boundaries of its previously granted certificated area. If so, it is also necessary to decide whether the Legislature may grant such power consistent with the fifth and fourteenth amendments to the United States Constitution.*fn16 In my judgment the Public Utility Law grants such power to the PUC and this authority does not offend the Constitution.

A

The purpose of public utility regulation is to insure that the public receives adequate services at reasonable rates.*fn17 The overriding concern is the public interest.*fn18 The operation of a public utility is impressed with a public interest and subject to regulation pursuant to the police power.*fn19 The Public Utility Commission was created by the Legislature to carry out this necessary regulation and protect the public interest.*fn20

[ 471 Pa. Page 365]

The PUC's task requires flexibility because the public interest is a dynamic concept and will not be adequately protected unless the PUC has the authority to meet changing needs. The very concept of regulation implies ongoing and continuous supervision by the regulating agency of those regulated.

This need for flexibility has been recognized and provided for in the Public Utility Law. Section *fn20321 provides that the PUC shall grant certificates of public convenience by order when it finds such action to be in the public interest. To such certificates it "may impose such conditions as it may deem to be just and reasonable."*fn22 The PUC is expressly granted the power, in § 902,*fn23 "to rescind or modify any such regulation or orders." Section 1007 of the Law*fn24 provides that "[t]he commission may, at any time, after notice and after opportunity to be heard as provided in the case of complaints, rescind or amend any order made by it."

The Water Company does not contest that a certificate of public convenience is an "order" of the PUC, but argues that the power to amend such orders does not include the power to enlarge its certificated area. The Water Company relies upon section 202 of the Law*fn25 which reads:

"Upon the application of any public utility and the approval of such application by the commission, evidenced by its certificate of public convenience first had and obtained, and upon compliance with existing laws, and not otherwise, it shall be lawful:

(a) For any public utility to begin to offer, render, furnish or supply within this Commonwealth service

[ 471 Pa. Page 366]

    of a different nature or to a different territory than that authorized by --

(1) A certificate of public convenience heretofore or hereafter granted under this act or under The Public Service Company Law, July 26, 1913 (P.L. 1374) . . . ."

The Water Company argues that this section requires that any provision of service outside a previously existing certificated area must be preceded by "the application of [a] public utility." I cannot agree.

Section 202 lists a series of acts by public utilities which the Legislature has determined to be of sufficient public importance to require prior PUC approval.*fn26 It provides that it is unlawful for a public utility to provide service to a different territory unless it first applies for PUC approval. It does not mean that the PUC can only act when invited to do so by a utility.

The Water Company's interpretation of the phrase "[u]pon the application of any public utility" as a limitation on the power of the PUC to order extensions of service into new areas would create a conflict with other provisions of the Public Utility Law. Section 401 of the Law*fn27 provides that:

"Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employes, and the public. . . . Such service and facilities shall be in conformity with the regulations and orders of the commission. . . ." (emphasis added)

[ 471 Pa. Page 367]

There is nothing in the language or context of this section to suggest that the obligations to the public imposed upon public utilities are limited to services within previously granted certificated areas. Indeed, prior cases have rejected the argument that public utilities have duties only towards existing patrons or employees because to do so would render the word "public" surplusage.*fn28 Thus, it must be concluded that the Legislature specifically contemplated that the PUC could order extensions of service when appropriate to serve the "accommodation, convenience, and safety of . . . the public."*fn29

Section 401 and the provisions in the Public Utility Law permitting the modifications and amendment of all

[ 471 Pa. Page 368]

PUC orders reflect an understanding of the PUC's need for flexibility to adequately protect the public interest. In light of the overriding purpose of the Public Utility Law, to provide the public with adequate service at reasonable rates,*fn30 the argument of the Water Company that orders to extend services are authorized only within previously existing certificated areas loses its force. When the boundaries of a certificated area are no longer appropriate for providing adequate service to the public, the PUC needs and has been granted the power to amend them.

B

The Water Company argues that to interpret the Public Utility Law as authorizing the PUC to order extensions of services beyond previously established certificated areas would render it unconstitutional. I disagree. Although the PUC could issue an order so burdensome that it would constitute a taking of property without just compensation in violation of the fourteenth amendment, I do not believe that any extension beyond a previously granted certificated area would be unconstitutional.

As early as 1917 the United States Supreme Court upheld the power of a state regulatory commission to order an extension of service by a public utility. New York & Queens Gas Co. v. McCall, 245 U.S. 345, 38 S.Ct. 122, 62 L.Ed. 337 (1917). Writing for the Court, Justice Clarke stated that:

"Corporations which devote their property to a public use may not pick and choose, serving only the portions of the territory covered by their franchises which it is presently profitable for them to serve and restricting the development of the remaining portions by leaving their inhabitants in discomfort without the service which they alone can render. To correct this disposition

[ 471 Pa. Page 369]

    to serve where it is profitable and to neglect where it is not, is one of the important purposes for which these administrative commissions, with large powers, were called into existence . . . ."

245 U.S. at 351, 38 S.Ct. at 124. See also People of State of New York ex rel. Woodhaven Gas Light Co. v. Public Service Commission, 269 U.S. 244, 46 S.Ct. 83, 70 L.Ed. 255 (1925); United Fuel Gas Co. v. Railraod Commission, 278 U.S. 300, 49 S.Ct. 150, 73 L.Ed. 390 (1929). The Water Company asserts that New York & Queens Gas Co., and its progeny are inapposite because they involved utilities which had obtained local governmental franchises and, consequently, had dedicated their property to public use in the territories in which extensions were ordered. The Water Company concedes that it has charter authority to provide service beyond its present certificated area, but insists that it has dedicated its property to public use only within the certificated area and that its dedicated area cannot be expanded without its consent.

I do not agree that a certificate of public convenience exactly defines the territorial scope of a utility's dedication to public service.*fn31 It would be impractical to

[ 471 Pa. Page 370]

    equate a certificate of public convenience with a franchise in determining the area in which a utility may be required to provide service. A governmental unit issuing a franchise can determine the ultimate scope of its service needs because the scope is coextensive with its political boundaries. A certificate of public convenience, however, is issued on the basis of the public's present needs. The PUC cannot at the time of issuance predict the growth and development of a community and, consequently, the future public interest in adequate utility services.

This practical difference between a local governmental franchise and a certificate of public convenience does not render the holdings of New York & Queens Gas Co. and its progeny inapplicable. The logic of these cases is that, having undertaken to serve a community, the utility must make reasonable adjustments in its services to meet changing needs as the area develops. The PUC can constitutionally require the same from utilities under its jurisdiction, guided, of course, by principles of reasonableness. Altoona v. Pa. PUC, 168 Pa. Super. 246, 77 A.2d 740 (1951).

The conclusion urged by the Water Company would be inconsistent with prior decisions of this Court. To hold that a certificate of public convenience creates a permanent territorial limit on the duty of a utility to serve the public would confer a substantial vested interest on public service companies. This Court has held many times that a certificate of public convenience is neither a contract nor a property interest under which its holder acquires vested rights. See e. g., Day v. Public Service Commission, 312 Pa. 381, 167 A. 565 (1933); Snyder v. Pa. Public Utility Commission, 187 Pa. Super. 147, 144 A.2d 468 (1958); Paradise v. Pa. Public Utility Commission, 184 Pa. Super. 8, 132 A.2d 754 (1957). To hold otherwise would elevate to a protected right the "disposition [of public utilities] to serve where it is profitable and to

[ 471 Pa. Page 371]

    neglect where it is not" which administrative agencies, like the PUC, with broad regulatory powers, were created to prevent. New York & Queens Gas Co. v. McCall, supra 245 U.S. at 351, 38 S.Ct. at 124.

Interstate Commerce Commission v. Oregon-Washington R. & Nav. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588 (1933), relied upon by the Water Company, does not require a different conclusion. The Court held that the Interstate Commerce Commission was without the authority to order a railroad to construct a new line, 185 miles in length, at a cost of between $9,900,000 and $11,700,000. Deciding the validity of the order on the basis of legislative intent, the Court noted that the railroad had not dedicated its services to the area the line would cover and stated that an order to serve such an area would raise serious constitutional questions. Even if the Water Company had dedicated its property only to those areas presently being served by it, I believe that the territorial boundaries of the area of dedication may be altered absent its consent. Most persuasive is the dissent of Justice Cardozo in Oregon-Washington, which more accurately describes the constitutional limits upon public service company regulation. 288 U.S. at 43-52, 53 S.Ct. at 275-278 (dissenting opinion of Cardozo, J., joined by Brandeis and Stone, JJ.).*fn32 As he stated:

"The time has gone by when the subjection of a public service corporation to control and regulation by the

[ 471 Pa. Page 372]

    agencies of government is to have its origin and justification in the terms of a supposed contract between the corporation and the state. The origin of the subjection and its justification are to be found, not in contract, but in duty, a duty imposed by law as an incident to the enjoyment of a privilege. The discretion of managers and stockholders, at one time nearly absolute, is now subject in countless ways to compulsion or restraint in the interest of the public welfare."

288 U.S. at 47, 53 S.Ct. at 276-77. Noting the comprehensive nature of modern regulatory schemes, Justice Cardozo concluded that:

"The argument is not persuasive that alone among all these inroads upon the freedom of managerial discretion the provision for compulsory extensions is to be struck down as ineffective. As long as governmental orders are kept within the range of reason, their operation is unaffected by expectation or desire.

The Fifth Amendment of the Constitution is invoked by the carriers, but invoked without avail. Consistently with that Amendment Congress may delegate to the Commission the power to force upon unwilling carriers an extension of their lines into fields of old service and of new. Much of what has been written in this opinion as to the meaning of the statute is pertinent also to an inquiry as to power. Again the thought is to be kept before us that the need of the public, not the acquiescence of the carrier, is the measure of the service, provided only that for such service there is adequate requital."

288 U.S. at 48, 53 S.Ct. at 277.

Our guide in determining the scope of the PUC's power must be the public interest, not the financial security of public utilities, which are adequately protected by other provisions of the Public Utility Law and the overriding requirement of reasonableness. As Justice (then

[ 471 Pa. Page 373]

Judge) Manderino stated in Akron v. Pa. Public Utility Comm., 2 Pa. Commw. at 641 (1971), "[t]he P.U.C. issues 'certificates of public convenience; ' not 'certificates for the convenience of public utilities.'" (emphasis in original)

The judgment of the Commonwealth Court should be reversed and the Commission order sustained.


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