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JOSEPH G. DEFRANCESCO AND FRANK CREA T/D/B/A MT. WASHINGTON ORNAMENTAL IRON WORKS COMPANY AND FRANK G. DEFRANCESCO AND FRANK CREA v. WESTERN PENNSYLVANIA WATER COMPANY (10/02/81)

filed: October 2, 1981.

JOSEPH G. DEFRANCESCO AND FRANK CREA T/D/B/A MT. WASHINGTON ORNAMENTAL IRON WORKS COMPANY AND FRANK G. DEFRANCESCO AND FRANK CREA, AS INDIVIDUALS
v.
WESTERN PENNSYLVANIA WATER COMPANY, A CORPORATION, APPELLANT. JOSEPH F. LOY AND BERNICE LOY T/D/B/A JOSEPH F. LOY TIRE SERVICE INC. V. WESTERN PENNSYLVANIA WATER COMPANY, A CORPORATION, APPELLANT



Appeal from the Judgment of the Court of Common Pleas, Civil Division, Allegheny County, at No. GD 75-6899. Appeal from the Judgment of the Court of Common Pleas, Civil Division, Allegheny County, at No. GD 75-5695.

COUNSEL

George I. Buckler, Pittsburgh, for appellant.

C. Robert Keenan, III, Pittsburgh, for appellees.

Cercone, P. J., and Montgomery and Van der Voort, JJ.

Author: Cercone

[ 291 Pa. Super. Page 155]

This case involves an appeal taken by Western Pennsylvania Water Company (hereinafter West Penn) challenging, inter alia,*fn1 the jurisdiction of the court of common pleas to hear this case. Finding that initial jurisdiction over this controversy is vested in the Pennsylvania Public Utility Commission, we vacate the judgments of the lower court awarding damages to the appellees herein.

On August 11, 1973, a fire erupted in a large pile of tires located in the rear of property owned by Joseph F. Loy Tire Service, Inc. (hereinafter Loy) at 1655 through 1659 Saw Mill Run Boulevard, Pittsburgh, Pennsylvania. The Fire Department of the City of Pittsburgh promptly arrived on the scene while the flames were still confined to one area. However, due to a problem with both the volume and the sporadic nature of the water supply being pumped from the fire hydrants at that location, the firemen were unable to confine the fire which then spread across the Loy property and onto the adjoining property of Joseph G. DeFrancesco and Frank Crea, trading and doing business as Mt. Washington Ornamental Iron Works Company and Joseph G. DeFrancesco and Frank Crea as individuals (hereinafter DeFrancesco). Both businesses were completely consumed by the fire.

On March 13, 1975, Loy filed a complaint in trespass and in assumpsit in the Court of Common Pleas of Allegheny County alleging that West Penn failed to provide adequate

[ 291 Pa. Super. Page 156]

    and sufficient water service to combat the blaze. On March 26, 1975, DeFrancesco filed a similar complaint. Throughout the trial, West Penn objected to the admission of any evidence regarding the adequacy or sufficiency of the water supply, asserting that this matter was not within the jurisdiction of the courts to adjudicate but within the exclusive jurisdiction of Pennsylvania Public Utility Commission. Appellees, Loy and DeFrancesco, contend this case does not involve the adequacy or sufficiency of water service but is one involving the law of negligence in which the traditional tort obligations and principles are applicable. The lower court, however, entertained jurisdiction over this controversy and the jury returned verdicts in favor of appellees Loy and DeFrancesco awarding damages in the amounts of $173,000 and $72,000 respectively, plus interest in the amounts of $1,663.39 and $692.28 respectively. After West Penn's motions for new trial and for judgment notwithstanding the verdict were denied by the court en banc, this appeal followed.

It is well-settled law that initial jurisdiction over matters involving the reasonableness, adequacy or sufficiency of a public utility's service, facilities or rates is vested in the PUC and not in the courts. See Elkin v. Bell Tel. Co. of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980); Allport Water Auth. v. Winburne Water Co., 258 Pa. Super. 555, 393 A.2d 673 (1978). As early as 1961, the Pennsylvania Supreme Court stated:

Although we still possess the right of judicial scrutiny over the acts of the PUC, no principle has become more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC -- not in the courts. It has been so held involving rates, service, rules of service, extension and expansion, hazard to public safety due to use of utility facilities, installation of utility ...


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