182 Pa. Super. 594 | Pa. Super. Ct. | 1956
Opinion by
Wattsburg Telephone Cooperative Association filed a complaint with the Pennsylvania Public Utility Commission charging that General Telephone Company of Pennsylvania had unlawfully encroached upon its exclusive service area when it extended local exchange service outside an agreed-upon operating territory in Wayne and Amity Township, Erie County, Pennsylvania. Complainant prayed that the respondent be restrained from constructing telephone lines and furnishing telephone service within the area served by complainant and that respondent be required to remove its lines and refrain from furnishing service in the area in the future. An answer was filed by the respondent denying that complainant has exclusive territorial rights in the area in question and after a hearing at which testimony was offered by both parties, the commission determined that the public interest would be served by the extension of respondent’s service into the disputed area and ordered that the complaint be dismissed. This appeal by the complainant followed.
Appellant contends the commission erred in finding that the General Telephone Company of Pennsylvania, intervening appellee, ivas not required to obtain a certificate of public convenience prior to rendering service in the disputed territory. This contention is without merit. The record fully substantiates the claim of the intervening appellee that it and its predecessors in interest were providing service in the disputed area prior to January 1, 1914, the effective date of the Public Service Company Law, Act of July 26, 1913, and therefore was not required to obtain a certificate of public convenience prior to commencement of operations in the area in dispute. The order of the commission properly held that “as a result of acquisitions and mergers and the rendition of local exchange service in the disputed area, prior and subsequent to January 1, 1914, General Telephone Company of Pennsylvania established its right to furnish the service. Harmony Electric Co. v. P.S.C., 78 Pa. Superior Ct. 271 (1922).”
However, appellant argues that in view of the stipulation contained in the order of the commission dated January 17, 1921, quoted supra, the intervening appellee was expressly required to seek authority from the commission before constructing new lines under the extended territorial rights obtained under that order. The order required approval of the commission “prior to the construction of neto lines . . .” (Emphasis added)
In the instant case the General Telephone Company of Pennsylvania merely extended its existing lines to
Appellant also contends that General Telephone Company of Pennsylvania violated various oral agreements which were partially reduced to writing on December I, 1917, whereby neither company was to encroach upon the territory reserved to the other. Appellant states that according to the terms of the agreement, Wattsburg Telephone Company was to serve Wattsburgh Borough and portions of the townships of Amity, Wayne, Venango, Greene and Greenfield as shown by a map which was offered in evidence designating the area to be serviced by Wattsburg. .It is conceded that General extended; its (facilities an.d is presently providing .telephone service to-subscribers within the. disputed, area. The commission,, in disposing _of ..this contention, held that “a territorial agreement between-a utility and a non-utility, in our opinion, is incapable
The written agreement, contained on the map, concurring in the boundary lines shown thereon, was signed by representatives of the Pennsylvania Telephone Corporation and Wattsburg Telephone Co.
As noted above, the General Telephone Company of Pennsylvania has charter rights to furnish telephone service to the public in Wayne and Amity Townships. The residents in these townships have a legal right to the service which General is bound to render. Any agreement such as that here involved which restricts or impairs the obligation of a utility to render service in its chartered territory would be tantamount to an abandonment or surrender of its franchise to that extent and to be effective, requires approval of the public utility commission. The Public Utility Code
“(d) For any public utility to dissolve, or to abandon or surrender, in whole or in part, any service, right, power, franchise, or privilege: Provided, That the provisions of this paragraph shall not apply to discontinuance of service to a patron for nonpayment of a bill, or upon request of a patron.” The agreement between Pennsylvania Telephone Corporation, predecessor of General Telephone Company of Pennsylvania, and Wattsburg Telephone Company, predecessor of Wattsburg Telephone Cooperative Association, never, having received- approval by the commission, cannot be considered a valid territorial agreement restricting the*601 right of General to extend its service into the disputed area.
Moreover, it is noted that complainant is a cooperative association. As such it is not subject to regulation and control by the commission, being specifically excluded from the purview of the Public Utility Code which provides that “The term 'Public Utility’ shall not include (a) . . .or (b) any bona fide cooperative association which furnishes service only to its stockholders or members on a nonprofit basis. . .”
A public utility duly authorized and empowered to provide telephone service in a specified territory cannot validly limit or impair its right to operate in authorized territory without the prior approval of the public utility commission.
Order affirmed.
Act of May 28, 1937, P.L. 1053, art. II, §202; 1938 Sp. Sess., Sept. 28, P.L. 44, §1; 1939, June 19, P.L. 419, §1.
Act of May 28, 1937, PX. 1053, art. I, §2; 1939, March 21, PX.' 10, No. 11,- §1; 1939, June 15, • PX. 387, §1; 1939, Juné 15, PX. 390, 81; 1939, June'21, PX. 636, §1, 66 PS §1102(17) (g).