207 Pa. Super. 312 | Pa. Super. Ct. | 1966
Opinion by
The present appeals grow out of a complaint filed by Frederic A. Lang and his wife, and Edward James, November 15, 1963, averring that Colonial Pipeline Company of Pennsylvania was about to construct, across their land and near their homes, in Chester County, Pennsylvania, a high pressure 30-inch diameter pipeline to transport gasoline and other highly dangerous petroleum products. The complaint averred the pipe was of insufficient thickness; that inspection pro
On November 30, 1963 Colonial moved to dismiss the complaint and/or stay proceedings citing the pend-ency in the Court of Common Pleas of Chester County of a suit in equity which it had filed to obtain an injunction restraining two of the complainants from interfering with the construction of its pipeline. Colonial also alleged the Commission lacked jurisdiction over the subject matter of the complaint. In its order of December 9, 1963, the Commission held it had jurisdiction of the complaint and denied the motion to dismiss. The Commission noted that it had certificated Colonial in 1962 as a public utility, for the purpose of transporting petroleum products by pipeline in Pennsylvania, and that Colonial was, under §401 of the Public Utility Law, 66 PS §1171, required to furnish “safe and reasonable service and facilities” and to maintain them in such manner “as shall be necessary or proper lor the . . . safety of its patrons, employes and the public.”
Colonial filed its answer admitting construction of the 30-inch pipeline which originated in Texas and ran 1600 miles through fourteen states, terminating in the New York Harbor Area, with 30 miles of trunk line located in Pennsylvania. Colonial denied the line was in any way unsafe, or that it lacked the right of eminent domain. The answer stated that radiograph inspections were made of 15-25% of the pipeline welds and that the line was later filled with water and subjected to a hydrostatic test of 125% of maximum operating pressures. Colonial’s plans specify a minimum
The Commission held twelve hearings between January 22 and April 16, 1964. Many witnesses for all. parties were heard on the issue of the safety of the pipeline in Pennsylvania and testimony consisting of some 2370 pages was produced, along with 175 exhibits. Por instance, evidence was produced by technical experts of all parties as to the pressures which the line would sustain under various conditions.
On November 9, 1964, the Commission entered an order sustaining the complaint in part and disposing of the petition to dismiss. The Commission held that Congress had not occupied the field of interstate pipeline safety to such an extent as to prevent the Commission from prescribing “certain safeguards and procedures minimally needed to ensure the safety of the public of Pennsylvania.” The Commission also held the equity suit in the Court of Common Pleas of Chester County did not oust it of jurisdiction to prescribe safety regulations as to the construction of the line in Pennsylvania.
The record showed that the greater part of Colonial’s pipeline consisted of 40-foot lengths of ductile rolled steel pipe, 9/32 or .281 inch thick. At certain stress points heavier pipe was used. Approximately 700 of the total of 3800 feet traversing the Lang property consists of .312 inch pipe, rather than .281 inch. The pipe, beveled at one end, is electrically welded at the joints. Appellants contend (1) that the joints of the line were not properly designed and were unsuited for a safe welding; (2) that the engineering standards used by Colonial as controlling construction of the line were not correct; and (3) assuming the codes and
The Commission then proceeded to inquire whether the standards used by Colonial had been conscientiously followed. Both Colonial and complainants had made radiographic inspection of the welds on the pipeline, and the Commission found that substantial defects existed in 10 of the 41 welds inspected on the Lang property.
On November 9, 1964 the Commission entered an order in which it directed Colonial to reinspect the 10 welds radiographically and to repair any rejectable defects disclosed, under standards fixed by the American Petroleum Institute Standard 1104. The remainder of the Commission order related to the safety of Colonial’s line in Pennsylvania as a whole. On this point the Commission directed Colonial, inter alia, to install strain and pressure gauges in the Pennsylvania line; to periodically measure pipe thicknesses by ultrasonic devices; to file rules incorporating safeguards as to operating pressures and to preserve records of such matters for inspection by the Commission.
Following the Commission order of November 9, 1964, a meeting was held November 23, 1964, between representatives of Colonial and the Commission staff “in order to present the technical detail of exactly how [Colonial] proposed to comply with” that part of the Commission’s order directing radiographic reinspection
Appellants, on November 30, 1964, filed a petition for rehearing with the Commission, alleging the Commission’s modification of its November 9, 1964 order deprived them of notice and opportunity to be heard, contrary to §1007, 66 PS §1397, and §1013, 66 PS §1403, of the Public Utility Law; that substitution of “sleeving” prevented reinspection by radiography, and that radiographic inspection of the ten welds was necessary to prevent the possibility of similar defects in other portions of the line in Pennsylvania and that substitution of sleeving for radiography was not a proper method of inspection and repair under A.P.I. Standard 1104. The Commission directed Colonial to hold up compliance with the November 9, 1964 order until complainant’s petition had been disposed of.
On December 9, 1964 the Commission entered its second order, here appealed from, denying appellants’ petition for a rehearing. The Commission held that its
Complainants brought the present appeal December 10, 1964. On December 11, 1964 Colonial filed its petition to intervene as appellee. Colonial also filed a separate appeal at No. 66 March Term, 1965, in order to protect its rights if the Commission’s orders should be applied or modified so as to affect its rights as to safety regulations of pipelines in interstate commerce. On December 18, 1964 this Court refused appellants’ petition for a supersedeas.
Appellants now urge that the Commission erred in not revoking Colonial’s certificate of public convenience issued November 26, 1962, on the ground, inter alia, that appellants received no specific notice of this certificate. This question was not raised in any of the proceedings below and is not properly before this Court: Middletown Boro v. Pa. P.U.C., 143 Pa. Superior Ct. 444, 17 A. 2d 904; Drexelbrook Associates v. Pa. P.U.C., 418 Pa. 430, 212 A. 2d 237, footnote 3 (1965). In any event, appellants’ attack on the certificate issued two years before to Colonial is collateral to this complaint proceeding. Appellants had other available remedies. See §1007 of the Public Utility Law, 66 PS §1397, and §1111, 66 PS §1441. The Commission found, on substantial evidence, that Colonial was a public, not a private carrier. Further, the record shows Colonial has a terminus in Pennsylvania. Nor did appellants
Appellants claim that having granted a certificate, the Commission erred in giving qualified approval of construction of Colonial’s pipeline by radiographic re-inspection of only ten welds, in the order of November 9, 1964. In this connection appellants urge that the Commission erred in failing to direct radiographic inspection of all joints in the Pennsylvania line on the basis of deficiencies in the X-ray films of 10 joints out of the 41 inspected on the Lang property. The Commission rejected this contention, pointing to the fact that it had directed various other steps in its November 9, 1964 order to insure the safety of the line in Pennsylvania; and also to the fact that Colonial would test the line in Pennsylvania hydrostatically to within 10 per cent of yield strength, and 125% above designed operating pressures. In view of the issues raised by the complaint, which concerned chiefly the safety of the pipeline in the vicinity of complainants’ properties, and considering the other safety measures taken by Colonial, and those imposed by the Commission in the order of November 9, 1964, we do not think that the Commission abused its discretion in failing to apply the sampling method of testing to the entire line in Pennsylvania. The Commission’s findings, supported by evidence, especially where, as here, there is conflicting expert testimony, are binding upon us and will not be disturbed on appeal: Pittsburgh Railways Co. v. Pa. P.U.C., 198 Pa. Superior Ct. 415, 427, 428, 182 A. 2d 80 (1962).
On remand the Commission will afford all parties an opportunity to be heard and to present evidence on this question. After reviewing all evidence in the case, the Commission may reach such a result as the evidence warrants. However, until all parties are afforded notice and opportunity to be heard on the question of modification of that part of the November 9, 1964 order relating to reinspection by radiograph, the pro
In our opinion the Commsision’s order of December 9, 1964, dismissing appellants’ petition for a rehearing, should be reversed and the record remitted for further proceedings to give all parties a hearing and an opportunity to present evidence relating to any amendment or modification of the November 9, 1964 order directing reinspection of the ten welds by radiograph.
Keversed and remanded for further proceedings in accordance with this opinion.