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decided: June 6, 1979.


Appeal from the Order of the Pennsylvania Public Utility Commission in case of Mapping of Retail Electric Service Territories, Special Order Docket No. 76-4.


William E. Zeiter, with him Morgan, Lewis & Bockius, and Vincent Butler, for petitioner.

Allison K. Turner, Assistant Counsel, with her Larry M. Smukler, Assistant Counsel, Shirley Rae Don, Assistant Counsel, and Kathleen Herzog Larkin, Chief Counsel, for respondent.

William E. Mowatt, for intervening respondent.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Blatt, DiSalle, Craig and MacPhail. Judges Wilkinson, Jr. and Rogers did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge DiSalle.

Author: Mencer

[ 43 Pa. Commw. Page 254]

Pennsylvania Power & Light Company (PP & L) has appealed an order of the Public Utility Commission requiring the filing of maps pursuant to Section 4(c) of the Retail Electric Supplier Unincorporated Area Certified Territory Act (Act), Act of July 30, 1975, P.L. 113, 15 P.S. § 3280(c). We affirm.

The first sentence of Section 4(c) requires that, within a time period specified by the Commission,*fn1 " each retail electric supplier shall file with the commission a map or maps showing all of its existing distribution lines as of the effective date of this act." (Emphasis added.) "Retail electric supplier" is defined in Section 2 of the Act, 15 P.S. § 3278, as " any person, firm, corporation, association or cooperative corporation . . . engaged in the furnishing of retail electric service." (Emphasis added.) PP & L has not denied that it is a firm, corporation, or association engaged in the furnishing of retail electric service. Thus, as a retail electric supplier, PP & L is clearly subject to the unambiguous mandate of Section 4(c).

On August 11, 1976, the Commission, pursuant to its authority under Section 4(c) and under Section 8, 15 P.S. § 3284, entered an order nisi requiring the maps to be filed on or before March 30, 1977.*fn2 The Commission did not deem it necessary for its purposes to know

[ 43 Pa. Commw. Page 255]

    the location of distribution lines located entirely within the service territory of a single retail electric supplier,*fn3 and it therefore ordered that the maps filed show only distribution lines located on the peripheries of service territories, i.e., where electric utilities adjoin other electric utilities, where electric utilities adjoin electric cooperative corporations, and where electric cooperative corporations adjoin other electric cooperatives. The fact that the Commission apparently ignored the statutory requirement that all distribution lines be shown has not been raised by any of the parties to this case.

PP & L filed timely exceptions to the Commission's order and was granted a hearing before an administrative law judge. Based on the recommendation of

[ 43 Pa. Commw. Page 256]

    the law judge, the Commission dismissed PP & L's exceptions and affirmed its order nisi.*fn4 This appeal followed.

PP & L's sole objection to the order of the Commission is that it required that the maps filed pursuant to Section 4(c) show distribution lines where two public electric utilities adjoin. It is PP & L's contention that the Commission should have ordered that the maps show only those lines where a public utility adjoins an electric cooperative, or where two electric cooperatives adjoin. It is apparent that PP & L, along with the Commission, has ignored the clear mandate of Section 4(c) that all distribution lines be shown, regardless of their location.

In what is in reality an attempt to have this Court render an advisory opinion on the meaning and constitutionality of other provisions of the Act, PP & L argues that the Act was not intended to redefine the boundaries between two public utilities but was intended only to establish boundaries where public utilities adjoin electric cooperatives and where electric cooperatives adjoin other electric cooperatives. That issue is not before us, since the Commission's order did not purport to redefine or establish any boundaries;*fn5 the order was merely intended to implement the clear statutory mandate that maps be filed.

We also note that PP & L does not even suggest how the words of the Act, applicable without distinction to all retail electric suppliers as defined in Section 2, can be interpreted to support its "construction" of the Act. Rather, PP & L, in effect, argues that the Act as written may operate so as to violate the Pennsylvania

[ 43 Pa. Commw. Page 257]

    and United States Constitutions.*fn6 PP & L is specifically arguing that the Act is severable as to "circumstances," see the Statutory Construction Act of 1972, 1 Pa. C.S. § 1925, i.e., that the purposes of the Act can be accomplished by applying it as written under circumstances where such application would be constitutional but not applying it under circumstances where the result would be unconstitutional. Id.*fn7 However, the severability issue is reached only where the application of the provisions of a statute to a particular set of circumstances has been held to be invalid. Id. PP & L does not even contend that its constitutional rights have been violated by the Commission's order requiring it to submit maps pursuant to Section 4(c), and we have no occasion to address the constitutionality

[ 43 Pa. Commw. Page 258]

    of any other section of the Act as applied to any hypothetical set of facts.


And Now, this 6th day of June, 1979, the order of the Public Utility Commission, adopted on November 23, 1977 and entered on December 2, 1977, is hereby affirmed.



Dissenting Opinion by Judge DiSalle:

I must respectfully dissent. The majority opinion orders a result which I feel places an unfair and undue burden upon PP & L and ultimately the consumer. The uncontradicted evidence in the record indicates that it would be expensive, time consuming and technically difficult for the utility to file the maps requested by the PUC. PP & L's expert witness testified that it would cost approximately $300,000 to prepare the maps and to establish equidistant boundary lines and $200,000 to revise PP & L's family of maps to be consistent with the new maps. The need to conduct surveys to determine the field location of equidistant boundary lines would generate additional costs.

The evidence also indicates that approximately 90% of PP & L's service territory borders definite, well known geographical and political areas. Replacing these certain, well defined boundaries with new and irregular ones would cause confusion as to which utility serves a particular customer, delays in service, and increased costs. Insofar as the obvious disadvantages of inconvenience, inefficiency and less effective service heavily outweigh any possible benefits, the PUC's order seems wholly inimicable to the public interest.

Nor am I persuaded by the majority's statement that "the Commission's order did not purport to redefine

[ 43 Pa. Commw. Page 259]

    or establish any boundaries; the order was merely intended to implement the clear statutory mandate that maps be filed." (footnote omitted.) Given the language of Sections 4(b) and (c), partially quoted by the majority in footnote 3, it is clear that the PUC intends to re-establish boundaries pursuant to Section 4 and has requested maps of distribution lines with that end in mind.

I dissent.

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