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HILLMAN COAL & COKE COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (08/18/81)

decided: August 18, 1981.

HILLMAN COAL & COKE COMPANY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Application of West Penn Power Company, No. A.00100672.

COUNSEL

David S. Watson, Thorp, Reed & Armstrong, for petitioner.

Louise Russell Knight, Assistant Counsel, with her Steven A. McClaren and Shirley Rae Don, Deputy Counsels, and Joseph J. Malatesta, Jr., Chief Counsel, for respondent.

Edward S. Stiteler, for Amicus Curiae, West Penn Power Company.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 61 Pa. Commw. Page 356]

The petitioner, Hillman Coal & Coke Company, challenges an order of the Pennsylvania Public Utility Commission (Commission) which granted an application by West Penn Power Company (West Penn) to exercise the power of eminent domain as to property owned by the petitioner.

The petitioner's 90-acre tract of land here in question is presently used for strip mining and West Penn has a right-of-way across it for an existing electrical transmission line. West Penn sought approval from the Commission to exercise the power of eminent domain under the Act of May 8, 1889, P.L. 136, added by Act of May 21, 1921, P.L. 1057, as amended, 15 P.S. § 3272, in order to acquire two additional easements: one for construction of a new transmission line which would run to the north of and parallel to the existing right-of-way and the other easement for an access road.*fn1

[ 61 Pa. Commw. Page 357]

A hearing on West Penn's application was held before an administrative law judge (ALJ) who submitted an initial decision to the Commission including findings of fact and conclusions of law and an order directing the scheduling of a future hearing for the purpose of taking additional evidence on certain specified matters.*fn2 After a public meeting, the Commission referred the matter back to the ALJ with the instruction that he either conduct additional hearings if they were deemed to be necessary or present the case to the Commission for its final determination.*fn3 The ALJ subsequently held a second hearing and then filed a supplemental initial decision finding that West Penn's choice of the routes for the new transmission line and for the access road was reasonable, in good faith and not arbitrary, wanton

[ 61 Pa. Commw. Page 358]

    or capricious. The Commission adopted the ALJ's decision and granted West Penn's application and this appeal followed.

The petitioner first contends that it was denied due process in that the ALJ erroneously ordered a second hearing at which additional evidence was taken. It is argued that under 1 Pa. Code § 35.232,*fn4 the ALJ, on his own motion, could not reopen the record after he had ...


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