Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Pennsylvania Power and Light Company for the right to acquire right-of-way for operation of electric lines and related facilities over and across land of the Fairview Water Company in the Borough of Mount Pocono, Monroe County, No. A-00104457.
Joseph J. Malatesta, Jr., Malatesta & Hawke, for petitioner.
Barbara S. Kahoe, Assistant Counsel, with her, Louise A. Knight, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
David J. Dulick, for intervenor, Pennsylvania Power & Light Company.
President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail, Doyle, Barry and Colins. Opinion by Judge Craig.
[ 83 Pa. Commw. Page 628]
Section 322 of the Business Corporation Law (the BCL)*fn1 mandates that, before a public utility corporation may exercise the power of eminent domain, it
[ 83 Pa. Commw. Page 629]
must file an application with the Pennsylvania Public Utility Commission (PUC) for a finding and determination that the service which the utility plans to furnish is "necessary or proper for the service, accommodation, convenience or safety of the public."*fn2 In this appeal from the PUC's grant of a certificate of public convenience to Pennsylvania Power & Light Company (PP&L) under section 322, Fairview Water Company (Fairview) challenges the jurisdiction of the PUC to determine that PP&L had the power to condemn a right-of-way across Fairview's property for the retention, operation, and maintenance of an aerial electric transmission line.
This appeal therefore raises the following question of law: Where a public utility seeks to condemn a less-than-fee simple interest in property for the operation of an aerial electric transmission line, does the PUC, in ruling on the necessity-of-service application filed under section 322 of the BCL, also have jurisdiction to entertain challenges to the scope and validity of that condemnation?
In 1953, Fairview and PP&L entered into a 30-year lease which permitted PP&L to construct a 69 kV transmission line on and over 580 feet of Fairview's property. The line over Fairview's property represents the last four-mile section of PP&L's 33 mile Blooming Grove-Mount Pocono Line and serves as one of two supply lines to PP&L's Mount Pocono 69-12 kV area substation.
In 1976, Fairview notified PP&L that it would not renew the lease. PP&L then informed Fairview on May 10, 1982 that it intended to initiate eminent domain proceedings.
On December 12, 1982, PP&L filed an application with the PUC under the BCL "for a ...