The opinion of the court was delivered by: RENÉE Cohn Jubelirer, Judge
Argued: September 14, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Before this Court is the appeal of Roger E. Meinhart and Grace N. Meinhart (together, Meinharts) from the order of the Court of Common Pleas of Huntingdon County (trial court) that denied Meinharts' preliminary objections to the Declaration of Taking of Valley Rural Electric Cooperative, Inc. (Valley Rural). Meinharts argue that the trial court erred in determining that Valley Rural was not required to apply to the Public Utilities Commission (PUC) for a determination, pursuant to Section 1511(c) of the Business Corporation Law of 1988, 15 Pa. C.S. § 1511(c), that the service Valley Rural sought to provide through its exercise of eminent domain "is necessary or proper for the service, accommodation, convenience or safety of the public." 15 Pa. C.S. § 1511(c). Alternatively, Meinharts argue that, if the PUC is not required to make such a determination, the matter should be remanded to the trial court for a factual determination as to whether Valley Rural's exercise of eminent domain "is necessary or proper for the service, accommodation, convenience or safety of the public." (Meinharts' Br. at 2.)
Meinharts are the developers of the Longhorn Ranch Subdivision (Longhorn Ranch) in Huntingdon County. Approximately 12 lots in Longhorn Ranch are owned by individuals other than the Meinharts; the Meinharts own the remaining unsold lots. Among these individuals are Bruce E. Shanholtzer and Laura F. Shanholtzer (together, Shanholtzers). The deeds to the lots in Longhorn Ranch contain restrictive covenants which state, inter alia, that:
No Right of Ways [sic] for roadways, power lines, pipe lines or for any other purpose may be granted across any lot to the lands of others. The only Right of Ways [sic] that may be granted are for utilities servicing the immediate Longhorn Ranch Subdivision. No lot may be used as a means of access or egress to or from any other real estate.
(Declaration of Taking ¶ 10.)
Valley Rural is an electric cooperative corporation organized pursuant to the Electric Cooperative Corporation Act of 1937*fn1 and now subject to the Electric Cooperative Law of 1990 (Law).*fn2 On October 8, 2008, Valley Rural filed a Declaration of Taking pursuant to Section 7321(a)(5) of the Law, 15 Pa. C.S. § 7321(a)(5), condemning an easement on Shanholtzers' property to provide for "an additional electric distribution line [which] will extend underground from an existing Valley Rural utility pole located on the condemned easement to an adjacent 20' private road." (Declaration of Taking ¶ 6.) At argument, the parties did not dispute that the length of the underground line is to be approximately ten feet. The Declaration of Taking states that the purpose of this easement is to "allow for the installation, repair, replacement, and maintenance of an electric distribution line, and electric utility distribution devices." (Declaration of Taking ¶ 5.)*fn3 Valley Rural also named the Meinharts as condemnees, along with all other property owners in Longhorn Ranch, condemning "certain rights granted by the restrictive covenants only to the extent that the covenants would serve to prevent Valley Rural from extending electrical service from the condemned easement on the Shanholtzer property to properties located outside of the Longhorn Ranch Subdivision." (Declaration of Taking ¶ 11.)
The Shanholtzers did not oppose Valley Rural's Declaration of Taking; however, Meinharts filed their Preliminary Objections to Declaration of Taking (Preliminary Objections). In their Preliminary Objections, Meinharts argued that Valley Rural had failed to comply with Section 1511(c) by not obtaining the approval of the PUC for the taking and had failed to allege "that the exercise of eminent domain is necessary or proper for the service, accommodation, convenience or safety of the public." (Preliminary Objections ¶ 2.)
The trial court held a hearing at which it heard arguments from Meinharts and from Valley Rural. The trial court held that Valley Rural, as an electric cooperative corporation, is not under the jurisdiction of the PUC and is, therefore, not required to comply with Section 1511(c) or to show that its exercise of eminent (Meinharts' Br. at 3-4.) Meinharts state that Mr. Bowser initiated a declaratory judgment action against Meinharts, which is still pending. Meinharts allege that the current condemnation by Valley Rural is an attempt to "short-circuit the judicial process." (Meinharts' Br. at 8.)
Meinharts' attorney made similar arguments before the trial court. (Trial Ct. Hr'g Tr. at 12, December 4, 2008.) Valley Rural's counsel made statements during the hearing that appear to corroborate the assertion that the purpose of the easement is to provide electrical service to Mr. Bowser's property. (Trial Ct. Hr'g Tr. at 13.) However, no testimony or evidence was adduced on this issue. Valley Rural states in its brief only that the purpose of the easement is to "provide power to certain properties located outside of the Longhorn Ranch subdivision." (Valley Rural Br. at 10.) domain is necessary for public safety or convenience (a standard which Meinharts derived from Section 1511(c)). The trial court, therefore, overruled Meinharts' Preliminary Objections. Meinharts now appeal to this Court.*fn4
Before this Court, Meinharts argue that Valley Rural is required by Section 1511(c) to apply to the PUC for a determination that the service Valley Rural sought to provide through its exercise of eminent domain power "is necessary or proper for the service, accommodation, convenience or safety of the public." 15 Pa. C.S. § 1511(c). Alternatively, Meinharts argue that the case should be remanded to the trial court for a similar determination.*fn5
This Court holds that Valley Rural is not required to apply to the PUC for a determination that its exercise of eminent domain power "is necessary or proper for the service, accommodation, convenience or safety of the public." 15 Pa. C.S. § 1511(c). As an electric cooperative corporation, Valley Rural's authority to exercise eminent domain power stems from Section 7321(a)(5), which states that electric cooperative corporations shall "have and exercise the power of eminent domain for the purpose and in the manner provided by the condemnation laws of this Commonwealth relating to public utility corporations for acquiring private property for public use." 15 Pa. C.S. § 7321(a)(5). The authority for the exercise of eminent domain power by public utility corporations is found at Section 1511.
Meinharts, therefore, argue that electric cooperative corporations should be subject to all of the provisions of Section 1511, including subsection (c), which states that the power of eminent domain:
may be exercised to condemn property outside the limits of any street, highway, water or other public way or place for the purpose of erecting poles or running wires or other aerial electric, intrastate aerial telephone or intrastate aerial telegraph facilities only after the [PUC], upon application of the public utility corporation, has found and determined, after notice and opportunity for hearing, that the service to be furnished by the corporation through ...