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ALLPORT WATER AUTHORITY v. WINBURNE WATER COMPANY (10/20/78)

decided: October 20, 1978.

ALLPORT WATER AUTHORITY, WEST BRANCH AREA SCHOOL BOARD, LEROY THOMPSON AND SHIRLEY FOLMAR
v.
WINBURNE WATER COMPANY, APPELLANT



No. 582 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Clearfield County at No. 76-38-EQU,. Civil Action - Equity.

COUNSEL

D. Mark Thomas, Harrisburg, with him Charles E. Thomas, Harrisburg, for appellant.

John M. Elliott, Philadelphia, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 258 Pa. Super. Page 556]

The Winburne Water Company has appealed from the Order of the lower court dismissing its preliminary objections to appellees' complaint.*fn1 For the reasons developed below, we reverse.

[ 258 Pa. Super. Page 557]

The pertinent facts of the case may be summarized as follows: In December, 1976, appellees commenced this equity action by filing a complaint with the Clearfield County Court of Common Pleas. Appellee Allport Water Authority is one of appellant's customers, purchasing water from Winburne and then supplying water service to its own customers in the Community of Allport and the surrounding area. Appellees West Branch Area School Board, Leroy Thompson and Shirley Folmar are all customers of appellee Authority.

In their complaint, appellees allege that Winburne began supplying water to the Authority pursuant to an agreement dated March 31, 1961. That agreement provided, inter alia that:

"12. Authority agrees to purchase such water as it may need for its water system from Water Company for a period of twenty (20) years, commencing with the date of completion, and to pay therefor at Water Company's effective tariff rates as they now exist or as they may be hereafter altered under the applicable laws of the Commonwealth of Pennsylvania; and Water Company does agree to furnish water to Authority in such amounts as to render reasonably adequate service. . . .

"It being provided, however, that if requirements of Authority's water system shall exceed the ability of Water Company to provide reasonably adequate service, and the Water Company shall, after notice, be unable to furnish reasonably adequate service to meet the demands of Authority's system, the Authority may, at its option, obtain water from other sources and cancel this agreement. In the event of such cancellation, Authority shall have no claim or demand upon Water Company for damages by reason of Water Company's inability to render reasonably adequate service to the system of the Authority. . . ."

By letter dated July 24, 1976, however, Winburne advised the Authority that it was not able ...


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