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FRANK J. SCHNEIDER v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/20/84)

decided: June 20, 1984.

FRANK J. SCHNEIDER, SR. AND HILDEGARDE M. SCHNEIDER, PETITIONERS
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission in case of In Re: Application of Pennsylvania Power Company, under the Act of General Assembly of the Commonwealth of Pennsylvania, approved May 21, 1921, P.L. 1057 (15 Pa. C.S.A. ยง 3272), for Commission finding and determination that the service to be furnished by applicant through its proposed exercise of the power of eminent domain to acquire right-of-way for the construction, operation, and maintenance of a transmission line or lines and related distribution facilities over and across land of Frank J. Schneider, Sr. and Hildegarde M. Schneider, his wife, Allegheny County, Pennsylvania, is necessary or proper for the service, accommodation, convenience or safety of the public, Application Docket No. A-00103668.

COUNSEL

Robert L. Federline, with him, Thomas J. Dempsey, for petitioners.

Larry Gesoff, Deputy Chief Counsel, with him, Charles F. Hoffman, Chief Counsel, for respondent.

David McNeil Olds, with him, Kathy K. Condo-Caritis, Reed, Smith, Shaw & McClay, for intervenor, Pennsylvania Power Company.

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

Author: Williams

[ 83 Pa. Commw. Page 308]

Frank J. Schneider, Sr. and Hildegarde M. Schneider (Schneiders) petition for review of the final order of the Pennsylvania Public Utility Commission (Commission) granting a Certificate of Public Convenience to the Pennsylvania Power Company (Penn Power).

This case commenced when Penn Power applied to the Commission for permission to proceed with the condemnation of an electric transmission line right-of-way across uninhabited property owned by the

[ 83 Pa. Commw. Page 309]

Schneiders in Franklin Park Borough, Allegheny County. Previously, Penn Power performed an electrical distribution study, and determined that the Bradford Woods/Franklin Park Borough area in its service territory might not be adequately and reliably served by existing distribution facilities beyond the summer of 1982. To remedy the projected inadequacy in the most economical manner, Penn Power determined that an additional substation was necessary. The proposed substation would require a 69,000 volt transmission line to supply it. The new transmission line would run from an existing transmission line for approximately 2.67 miles to the proposed substation, traversing the Schneiders' property for approximately three-fifths (3/5) of a mile. Penn Power selected a transmission line route which would run as much as possible along the Schneiders' property boundaries rather than a more economical direct route through the middle of their property.

By October, 1978, Penn Power, after notice to all affected land owners, was able to acquire amicably the necessary rights-of-way from all of the landowners, except the Schneiders. Despite numerous attempts to make a settlement, Penn Power was unable to reach an agreement with the Schneiders. Consequently, Penn Power applied for a Certificate of Public Convenience in order to begin proceedings against the Schneiders' property in eminent domain.

Shortly after Penn Power's application to the Commission, the Schneiders filed a complaint in equity raising certain constitutional claims against Penn Power in the Court of Common Pleas of Allegheny County. An Administrative Law Judge (A.L.J.) scheduled a hearing on the application for December 16, 1981 with proper notice to the parties. On December 3, 1981 the Schneiders' attorney requested a continuance of the hearing pending resolution of the

[ 83 Pa. Commw. Page 310]

    equity action which was denied by the Chief A.L.J. On December 14, 1981, the Schneiders' attorney made a second request for a continuance due to the hospitalization of Mr. Schneider for an operation. This request was also denied by the Chief A.L.J.

At the December 16, 1981 hearing, the Schneiders' attorneys appeared and presented to the A.L.J. a Motion to Dismiss or Stay the Proceeding and, alternatively, made a formal Request for Certification to the Commission of the issues raised in the Motion. The A.L.J. denied the Motion but he took no action on the Request for Certification at that time. The A.L.J. then explained that in the absence of Mr Schneider, he would receive the direct testimony of Penn Power's representatives and would reserve to the Schneiders the right to cross-examine those who testified on the basis of the transcript and to present their direct ...


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