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CITY ERIE v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/18/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 18, 1981.

CITY OF ERIE, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT

Appeal from the Order of the Pennsylvania Public Utility Commission in case of Township of Harborcreek, Complainant; Pennsylvania Public Utility Commission, Intervenor v. City of Erie, Respondent, No. C 21906.

COUNSEL

Charles B. Zwally, Shearer, Mette & Woodside, with him Donald J. Rogala, City Solicitor, for petitioner.

Daniel P. Delaney, Assistant Counsel, with him Joseph J. Malatesta, Jr., Chief Counsel, for respondent.

Eugene J. Brew, Jr., Dale and Brew, for intervenor, Harborcreek Township.

President Judge Crumlish and Judges Mencer, Rogers, Craig and Palladino. Judges Blatt, Williams, Jr. and MacPhail did not participate. Opinion by President Judge Crumlish. Judge Mencer did not participate in the decision in this case.

Author: Crumlish

[ 60 Pa. Commw. Page 104]

The City of Erie again appeals a Pennsylvania Public Utility Commission order to extend municipal water service outside of its territorial and certificated service area into a specified area of Harborcreek Township affecting approximately 174 family dwellings. We affirm.

In City of Erie v. Pennsylvania Public Utility Commission, 41 Pa. Commonwealth Ct. 194, 398 A.2d 1084 (1974), the City contended that the Commission lacked the authority to order the extension of service since the decision relied upon matters never properly made part of the record, specifically two previous Commission decisions which determined that Erie was providing water service beyond its area of certification. Assigning merit to the City's petition, this Court reversed and remanded the entire matter to the Commission for the purpose of building a competent record which would not only satisfy the City's fundamental due process rights of evidentiary notice and an opportunity to be heard, but allow us on appeal to determine whether the City of Erie was actually rendering uncertificated extraterritorial water service.

[ 60 Pa. Commw. Page 105]

On remand, the Commission held a hearing, took testimony, and again concluded that the City was providing service beyond its certificated territory and that the Commission had the authority to order such a reasonable extension of Erie water into the requested area. The Commission found a clear pattern of water service by the City outside the confines of its September 3, 1963 certificate of public convenience based upon prior decisions in Pennsylvania Water Co. v. City of Erie, 49 Pa. P.U.C. 4 (1975), Willis v. City of Page 105} Erie, 47 Pa. P.U.C. 731 (1974), and Hoffmann v. City of Erie, 42 Pa. P.U.C. 656 (1966), as well as individual line extensions to the Howard Johnson Motel and Restaurant complex in 1962 to the South and the Rondale Nursing Home in 1962 to the Southeast of the City.

The sole question for our review in this second appeal by the City of Erie is then whether the record evidence adequately documents extraterritorial uncertificated service and justifies the Commission's ensuing authority to reasonably extend that service.

The City argues that Commission jurisdiction may only be supported by a showing that service was unilaterally extended by the City beyond the certificated area and not by service extensions in compliance with the three prior Commission orders. Although we agree in part, the proposal must fall.

After the original 1963 delineation of extraterritorial service area, the Commission ordered three extensions of service. In Hoffmann, the Commission ordered extension of extraterritorial public water service on East Lake Road and Bartlett Road in Harborcreek Township after finding that the City had extended services and facilities into a portion of adjoining Millcreek Township beyond its certificated area. In Willis, the Commission extended service to the area bounded by Buffalo Road, Saltsman Road, Township Road 725, including extensions along Susan Drive, Freeman Road, a portion of Township Road 729 and to Harborcreek Junior-Senior High School in Harborcreek Township after finding that Erie was providing service outside its certified area. In Pennsylvania Water Co., the Commission extended service to the Watson Road-Elizabeth Lane-Tramarlac Lane area in Millcreek Township after finding that Erie was providing uncertified service on Watson Road.

[ 60 Pa. Commw. Page 106]

Clearly, these Commission-ordered extensions of service were not the voluntary, unilateral actions by the City contemplated by our decision in Akron v. Pennsylvania Public Utility Commission, 2 Pa. Commonwealth Ct. 625 (1971), vacated on other grounds, Borough of Akron v. Pennsylvania Public Utility Commission, 453 Pa. 554, 310 A.2d 271 (1973). See City of Erie v. Pennsylvania Public Utility Commission, 41 Pa. Commonwealth Ct. at 200, 398 A.2d at 1087. However, the underlying support cited by the Commission for these extensions can serve as an evidentiary basis for our approving the Commission's present extension of service into Harborcreek Township. Although these underlying extraterritorial findings are only general in nature, we are compelled by the Public Utility Code to accept them as prima facie evidence to support the Commission's decision. Section 316 instructs us that "[w]henever the commission shall make any rule, regulation, finding, determination or order, the same shall be prima facie evidence of the facts found and shall remain conclusive upon all parties affected thereby, unless set aside, annulled or modified on judicial review."*fn1 (Emphasis added.) Although the three Commission decisions are neither chronologically nor geographically definitive of prior, unilateral, uncertificated service, the findings are clear, the decision unappealed, and the conclusion viable prima facie evidence to support the Commission's present extension of service into Harborcreek Township.*fn2

[ 60 Pa. Commw. Page 107]

Having concluded that competent evidence exists to support the Commission's decision, the question is then one of reasonable extension. If a municipality renders unilateral extraterritorial service beyond its certified area without application to the Commission for a certificate of public convenience delineating its boundaries, then as each new proposed extension is presented, the Commission has jurisdiction to determine whether reasonable extensions of the extraterritorial service should be granted.*fn3 See Phoenixville v. Pennsylvania Public Utility Commission, 3 Pa. Commonwealth Ct. 56, 61, 280 A.2d 471, 474 (1971). However, the Commission's power is not without limit. "[J]ust because a municipality is rendering an extraterritorial utility service on the easterly side of its boundaries does not mean the Commission can order extensions arbitrarily on the west or north or south, perhaps many miles away. The test is reasonableness." Id. at 63-64, 280 A.2d at 475. In the case before us, the Commission clearly found that the requested extension was reasonable and would not seriously affect present service. Considering the Commission's prior Harborcreek determinations in Willis and Hoffmann with their geographic proximity to the present request,*fn4 we are unable to conclude that the Commission

[ 60 Pa. Commw. Page 108]

    erred as a matter of law by ordering the extension of water service by the City of Erie.

Affirmed.

Order

The Pennsylvania Public Utility Commission order, dated December 26, 1979, is affirmed.

Judge Mencer did not participate in the decision of this case.

Date: June 18, 1981

Disposition

Affirmed.


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