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Goadby v. Philadelphia Electric Co.

decided: January 9, 1981.

GOADBY, ALBERT T.
v.
PHILADELPHIA ELECTRIC COMPANY, PENNSYLVANIA PUBLIC UTILITY COMMISSION, CARTER, LEWIS J., BLOOM, ROBERT K., O'BANNON, HELEN B., JOHNSON, MICHAEL, GOODE, W. WILSON, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE PENNSYLVANIA PUBLIC UTILITY COMMISSION, BARTLE, HARVEY, III, INDIVIDUALLY AND IN HIS CAPACITY AS ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA, COMMONWEALTH OF PENNSYLVANIA PHILADELPHIA ELECTRIC COMPANY, APPELLANT IN NO. 80-2461 (D.C. CIVIL NO. 80-02759); GOADBY, ALBERT T. V. PHILADELPHIA ELECTRIC COMPANY, PENNSYLVANIA PUBLIC UTILITY COMMISSION, CARTER, LEWIS J., BLOOM, ROBERT K., O'BANNON, HELEN B., JOHNSON, MICHAEL, GOODE, W. WILSON, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE PENNSYLVANIA PUBLIC UTILITY COMMISSION, BARTLE, HARVEY, III, INDIVIDUALLY AND IN HIS CAPACITY AS ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA, COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLANT IN NO. 80-2503 (D.C. CIVIL NO. 80-02759)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Before Aldisert, Garth and Higginbotham, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

The question before the court in this appeal brought under 28 U.S.C. § 1292(a) (1) by the Pennsylvania Public Utilities Commission (PUC) and the Philadelphia Electric Company (PECO) is whether the district court erred in granting a preliminary injunction restraining the construction and operation of a high-voltage electrical line crossing the property of Albert T. Goadby. We reverse the grant of the injunction and we remand these proceedings to the district court with directions to enter an order dismissing that portion of the complaint seeking an injunction because we determine that there is an adequate remedy at law.

I.

The appellee, Albert T. Goadby, owns about three acres of mature woodland in Montgomery County, Pennsylvania, having purchased the first of three contiguous parcels in 1957. Goadby has lived on the premises during all times relevant to this law-suit. The property is subject to a right-of-way for a 230 Kv transmission line erected by the Pennsylvania Power and Light Company (PP&L) in 1927.

In 1971, PECO notified Goadby that it intended to build a 500 Kv transmission line across his property, parallel to the existing PP&L line, as part of a link between two PECO substations. PECO's transmission line will be on the opposite side of the PP&L line from Goadby's house, approximately 200 feet from the structure at its nearest point. The proposed line will cross the property aerially; no transmission tower will be erected on the six-tenths acre right-of-way.

According to the appellants, the new line will provide a vital connection among Pennsylvania, New Jersey, and Maryland power systems, allowing regional sharing of electricity. In addition, PECO demonstrated an immediate need for the line to buttress and augment its sources of electricity to prevent service curtailments and blackouts. PECO also noted that the transmission line will permit it to acquire low cost coal-generated electricity from western Pennsylvania. The PUC made extensive findings regarding the need for the project in decisions made in 1978 and 1979, and concluded that "the proposed line is clearly needed now if PECO is to fulfill its statutory obligation to supply reliable electric service to its customers." App. at 121e; see also id. at 72e-73e.

In 1973, after its board of directors passed resolutions condemning rights-of-way for the proposed route of the line, PECO filed an application for certificates of public convenience relating to the affected real estate. In April, 1974, the PUC held an evidentiary hearing regarding Goadby's land. At that hearing, Goadby's attorney questioned witnesses concerning the scope and validity of the proposed right-of-way. On May 17, 1978, after reviewing the record, the PUC granted PECO the certificates of public convenience, finding that the utility's proposed exercise of eminent domain was necessary for the public welfare. Id. at 91e. Neither Goadby nor any other party appealed this decision.

New regulations promulgated by the PUC in 1978 forced PECO to file another application with the PUC, this time for site approval of the line. As required by regulation, PECO gave personal notice to all interested governmental units and gave notice to the public by newspaper publication. Goadby did not respond, but Franconia Township notified the PUC that it opposed the line for various reasons. The PUC conducted an evidentiary hearing focused on the safety and routing of the transmission line, including the effects of electromagnetic fields. Based on all the testimony, the PUC again approved the application, finding, inter alia, that "(b)oth the ground level electric field and the magnetic flux density of the line, using the most extreme theoretical conditions, are well below danger levels.... (T)he proposed line ... will present no danger to the public's health or safety." Id. at 121e-22e. Again, neither Goadby nor any other party appealed from the PUC's decision, and construction of the power line began in January, 1980.

II.

After ignoring his right to appeal the PUC's decisions, Goadby initiated the first of an extensive series of court proceedings on May 13, 1980, the day before the right-of-way on his property was scheduled for clearing, by filing a complaint in equity against PECO in the Montgomery County Common Pleas Court. In addition to damages, Goadby asked for an injunction halting construction of the transmission line over his property. Goadby raised two major arguments: first, that PECO violated Pennsylvania law by condemning only a right-of-way and not a fee simple; and second, that the proposed right-of-way violated 15 Pa.Stat.Ann. § 1322(B)(1), which prohibits utilities from condemning certain types of rights-of-way within 300 feet of a dwelling. See Goadby v. Philadelphia Elec. Co., No. 80-8312, typescript op. at 4 (Montgomery Co. C.P. June 4, 1980), reprinted in app. at 111e. On June 3, 1980, Goadby filed a second complaint in equity against both PECO and PP&L alleging a conspiracy to construct the transmission line in violation of the easement granted to PP&L in 1927.

At some point after filing his state court complaint, Goadby introduced the contention that the proposed power line would endanger his health. Specifically, Goadby maintained that the transmission line would create an electromagnetic field encompassing his house and that prolonged exposure to the field would cause various physical ailments. Goadby's theory was that the existence of this field and its associated dangers amounted to a de facto taking of his entire property.

On June 4, 1980, following a hearing, the state trial court dismissed the first complaint and denied a preliminary injunction requested by Goadby in the second action. The court held that PECO's condemnation of a right-of-way complied with Pennsylvania law. Id. at 5-6, app. at 112e-13e. In addition, the court observed that Goadby had the opportunity to challenge the scope and validity of the condemnation at his hearing before the PUC in 1974, and ...


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