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

COMMONWEALTH COURT OF PENNSYLVANIA


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 filed his first initial decision with the Commission. We cannot agree.

The ALJ may reopen the record at any time prior to the filing of his proposed report, 1 Pa. Code § 35.232, and all initial decisions must include not only findings of fact and conclusions of law, but must also contain "the appropriate rule, order, sanction, relief, or denial thereof." 66 Pa. C.S. § 335(c)(2); 1 Pa. Code § 35.205. We believe that such language, when coupled with the legislative mandate that a "presiding officer shall initially decide the case," 66 Pa. C.S. § 335(a), requires that the ALJ's proposed report must include a recommended resolution of the matter in controversy. Inasmuch as the report in this case contained no such recommendation, but only ordered additional hearings, we must conclude that the Commission properly returned the matter to the ALJ with the direction to conduct further hearings if such were deemed necessary or to resolve the issues and

[ 61 Pa. Commw. Page 359]

    to present them to the Commission for its final determination.*fn5

The Petitioner also argues that granting a new hearing was procedurally unfair in that the Commission and the ALJ informed West Penn as to what elements of its application had not been established and thereby allowed a second opportunity for West Penn to meets its burden of proof. We find no merit in this argument.

The ALJ specifically found that West Penn had established a public need for the new transmission line and, in order to promote that public interest, we believe that the ALJ properly directed that additional evidence be taken on specific issues regarding West Penn's evaluation of the route chosen for the new line.*fn6 Supra, note 2.

The petitioner next contends that it filed exceptions to the ALJ's supplemental initial decision which were never ruled upon by the Commission as required by 66 Pa. C.S. § 335(c), and that such a failure amounts to an abuse of discretion. Again, we cannot agree.

The Commission expressly adopted the findings and conclusions of the ALJ and we believe that such a decision carried with it an implicit denial of the petitioner's exceptions. Although we do not favor such a method of overruling exceptions, we must conclude that the Commission, when confronted with a

[ 61 Pa. Commw. Page 360]

    choice between the ALJ's decision and the exceptions thereto, clearly adopted the former in its final determination and rejected the latter.*fn7

Finally, it is argued that the ALJ's findings of fact concerning West Penn's failure to evaluate alternative routes which would not affect the petitioner's property*fn8 do not support the conclusion that the route selection process in this case was reasonable, in good faith and not arbitrary, wanton or capricious.

[ 61 Pa. Commw. Page 361]

    is to be done by the public utility, Department of Environmental Resources v. Pennsylvania Public Utility Commission, supra, and we believe that there would be an undue burden placed on that utility if we required it in all cases to consider alternative routes for each individual property over which its transmission lines would cross.

We will, therefore, affirm the order of the Commission.

Order

And Now, this 18th day of August, 1981, the order of the Pennsylvania Public Utility Commission in the above-captioned matter is affirmed.

Disposition

Affirmed.


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