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FAIRVIEW WATER COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (07/12/84)

decided: July 12, 1984.

FAIRVIEW WATER COMPANY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



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.

COUNSEL

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.

Author: 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 ...


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