Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Ridgway Limited Partnership v. Borough of Ridgway, No. C-823011.
John L. Heaton, Dilworth, Paxson, Kalish & Kauffman, with him, John F. Pontzer, Pontzer & Pontzer, for petitioner.
Terrance J. Fitzpatrick, Assistant Counsel, with him, Louise A. Knight, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
William T. Hawke, Malatesta & Hawke, for intervenor, Ridgway Limited Partnership.
Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle.
[ 83 Pa. Commw. Page 381]
Before this Court is an appeal by the Borough of Ridgway (Borough) from a decision and order of the Pennsylvania Public Utility Commission (PUC) requiring the Borough to permit the Ridgway Limited Partnership (Partnership) to establish, at its own expense, a connection with the Borough operated sewer system. The decision also directed the Borough to apply to the PUC for a certificate of public convenience on the grounds that it was operating a public utility service beyond its corporate limits. See Section 1501 of the Public Utility Code (Code), 66 Pa. C.S. § 1501.
The facts of this case are essentially undisputed. In 1980, the Partnership commenced discussions with the Borough regarding the construction of an apartment complex in the Borough. During the course of these discussions the Partnership was advised that if connections to the Borough's sewer system were to be made, it would be necessary to obtain approval therefor from the Pennsylvania Department of Environmental Resources (DER) inasmuch as the DER had placed the Borough under a sewage connection prohibition because of hydraulic overload problems. The Partnership accordingly arranged a meeting with representatives of DER to discuss the situation, at which the Borough was represented by its engineer. Subsequently the Borough submitted a report on its
[ 83 Pa. Commw. Page 382]
sewer system and treatment plant for the year 1980 to the DER. In the report, the Borough included the connections necessary to service the Partnership's proposed apartment complex as part of its requested allocation for 1981. Owing to steps taken by the Borough to alleviate the hydraulic overload problem, the DER lifted the connection prohibition and notified the Borough that twenty equivalent dwelling units plus the apartment complex could be permitted to connect to the Borough's system.
At some point during the DER's consideration of the Borough's request, the Partnership concluded that there were no feasible sites inside the Borough upon which to construct the apartments. It therefore chose a site north of the Borough, in Ridgway Township*fn1 (Township), known as the Montmorenci Area. Pursuant to a procedure then in effect between the Township and the Borough, and following the DER's allocation of 1981 tap-ins, the Partnership then submitted to the Township Municipal Authority (Authority) a request to connect with the Borough's system.*fn2 Having no objection thereto, the Authority in turn forwarded the Partnership's application to the Borough Council which rejected it five to one at its April 26, 1982 meeting.*fn3
The Partnership responded to the Borough's rejection of its application by filing actions in mandamus and for a mandatory injunction with the Court of Common Pleas of the Fifty-Ninth Judicial District, Elk County Branch. Both complaints alleged that the rejection was discriminatory and unreasonable.
[ 83 Pa. Commw. Page 383]
The common pleas court denied the mandamus on the grounds that "the permission requested is not a ministerial act but one involving legislative discretion." Ridgway Limited Partnership v. Borough of Ridgway, (No. 82-361 filed June 24, 1982), slip op. at 4. The mandatory injunction was refused on the basis of the Partnership failing to meet its burden of proof.
On May 10, 1982, the Partnership again challenged the Borough's action, this time by filing a complaint with the PUC. A hearing was held on July 14, 1982, before Administrative Law Judge (ALJ) Joseph I. Lewis who, after consideration of the testimony before him and the depositions and exhibits introduced into evidence by the parties, entered an Initial Decision, finding, in pertinent part:
7. The Partnership optioned land on Montmorenci Road is some 500 feet from the [Borough's] sewer line (Tr. 27) and in order to connect to the existing manhole it is necessary to pump the sewage uphill into the manhole. (Tr. 27).
8. Boro [sic] operates a sewer system in both Ridgway Borough and Ridgway Township. (Tr. 45).
9. The sewage disposal plant is in Ridgway Township (Tr. 45), and is operated ...