175 Pa. Super. 114 | Pa. Super. Ct. | 1954
Opinion by
This appeal is from an order of the Pennsylvania Public Utility Commission dismissing, without prejudice and without a hearing, an application by White Oak Borough Authority for a certificate of public convenience evidencing commission approval of the acquisition by the Authority of certain existing water facilities located within the Borough. The facilities consist of the following: (a) Water lines installed in public streets and paid for by the City of McKeesport; (b) water lines installed in public streets and paid for by Versailles Township, predecessor of White Oak Borough; (c) water lines installed in public streets and paid for by individuals in connection with lot and plan developments; and (d) water lines and fire hydrants installed and paid for by White Oak Borough Authority.
The application filed by the Authority set forth that the City of McKeesport since 1907 had been furnishing
The Authority relied upon the following legislation and precedent as a legal basis for such acquisition: (a) The Public Utility Law of 1937, as amended; (b) the Municipality Authorities Act of 1945, P. L. 382, as amended; (c) section 34, clause 7, of the Act of April 29, 1874, P. L. 73; (d) White Oak Borough Authority Appeal, 372 Pa. 424, 93 A. 2d 437. Without requiring an answer to the application and Avithout a hearing, the Commission concluded that, under the facts averred, the Authority had not shoAvn any procedure by which it was entitled to acquire adversely and by compulsory process the Avater lines and facilities of the City of McKeesport Avithin the Borough limits. Accordingly the Commission held that it could not exercise its jurisdiction to grant the certificate requested, and it denied the application of the Authority, Avithout prejudice. From this order of the Commission the Authority has appealed.
This is not a case Avhere the Commission persists in entertaining jurisdiction (Reed v. Pennsylvania Public Utility Commission, 174 Pa. Superior Ct. 132, 100 A. 2d 399), but one in which the Commission dismissed the application for lack of jurisdiction; and such order of the Commission is, without doubt, final and appeal-able. Cf. Sayre Land Co. v. Pennsylvania Public Utility Commission, 167 Pa. Superior Ct. 1, 74 A. 2d 713; Philadelphia Electric Co. v. Public Service Commission,
The present proceeding represents at least the third attempt of this Authority, or its predecessor, to acquire and operate that part of the water system in the ■Borough originally installed and presently operated by the City of McKeesport. In Versailles Township Authority v. McKeesport, 171 Pa. Superior Ct. 377, 90 A. 2d 581, the predecessor of the present appellant brought an action to quiet title to the water distribution system within the Borough or Township, which in part had been installed and operated by the City of McKeesport. The trial court entered a judgment of nonsuit, and we affirmed, pointing out that the rights of the parties were not clearly defined on the record, and suggesting that the matter be settled amicably by agreement. In another proceeding the White Oak Borough Authority, the appellant herein, sought to exercise the power of eminent domain and acquire by condemnation the water lines and facilities wholly within the Borough, owned and operated by the City of McKeesport. On appeal our Supreme Court held that the Authority was not empowered by any applicable laws to exercise the power of eminent domain against the City of McKeesport. White Oak Borough Authority Appeal, supra, 372 Pa. 424, 428, 429, 93 A. 2d 437. The Supreme Court affirmed the order of the court below (page 429 of 372 Pa., page 439 of 93 A. 2d) “without prejudice to the right of the White Oak Borough Authority to apply to the Public Utility Commission for a certificate of public convenience and to have its rights and powers determined by such Commission or in any other proper proceeding.”
Section 9 of the Municipality Authorities Act of May 2, 1945, P. L. 382, as amended, 53 PS §2900z — 10,
“B. No Authority shall acquire by any device or means whatsoever, including a consolidation, merger, purchase or lease, or through the purchase of stock, bonds or other securities, the title to or the possession or use of all or any substantial portion of any project as defined in this act, which said project is subject to the jurisdiction of the Pennsylvania Public Utility Commission, without the approval of the commission, evidenced by its certificate of public convenience first had and obtained, in accordance with the procedure and investigations as to value as outlined in section two hundred three of the act, . . . known as the ‘Public Utility Law.’ The commission shall also consider the earning power of the project in deciding the value thereof. The word ‘acquire’ as used in this paragraph shall include only the acquisition of existing facilities.
“The Authority shall first report to and advise the municipality or municipalities by which it was created of the agreement to acquire, including all its terms and conditions.
“The proposed action of the Authority, and the proposed agreement to acquire, shall be approved by the governing body of the municipality or municipalities which created or which are members of the Authority and to which the report is made. Where there are one or two member municipalities of the Authority, such approval shall be by two-tliirds vote of all of the members of the governing body or of each of the governing bodies. If there are more than two member municipalities of the Authority, approval shall be by majority vote of all the members of each governing body of two-thirds of the member municipalities.
*120 “C. This section, without reference to any other law, shall be deemed complete for the acquisition by agreement of projects, as defined in this act, located wholly within or partially without the municipality or municipalities causing such Authority to be incorporated, any .provisions of other laws to the contrary notwithstanding, and no proceedings or other action shall be required except as herein prescribed.”
This section of the Municipality Authorities Act of 1915, 53 PS §2900z — 10, does not grant to appellant in this proceeding the right to compel the City of Mc-Keesport to transfer to it that portion of the water lines and facilities which the City owns and operates ■in White Oak Borough. This portion of the Act contemplates acquisition “by agreement” only from a consenting OAvner with commission approval as a condition precedent. There has been no agreement between the Authority and the City; consequently the Act affords no aid to appellant Avho seeks acquisition by compulsory process. The Commission could exercise its jurisdiction to grant a certificate of public convenience .only in so far as it is authorized by law. Furthermore, it is clear that section 11 of the Municipality Authorities Act of 1915, as amended, 53 PS §2900z — 12, prohibits a municipal authority from acquiring by eminent domain any property owned or used by a political subdivision of the Commonwealth of Pennsylvania or any property of a public service company. Versailles Township Authority v. McKeesport, supra, 171 Pa. Superior Ct. 377, 90 A. 2d 581; White Oak Borough Authority Appeal, supra, 372 Pa. 424, 427, 428, 93 A. 2d 437.
Appellant relies principally upon the Act of April 29, 1874, P. L. 73, §34, cl. 7, 15 PS §1353, as providing a method for adverse acquisition of the Avater lines and facilities owned and operated by the City Avithin White
Under section 202 of the Public Utility Law of May 28, 1937, P. L. 1053, as amended, 66 PS §1122, commission approval is required before a municipality may
The Commission considered the facts averred in the application of the Authority for a certificate of public convenience to be as stated. As there was no factual issue involved the question presented to the Commission was one of law. Consequently, there was no necessity to require the filing of an answer or to hold a hearing. Erie Lighting Company v. Pennsylvania Public Utility Commission, 131 Pa. Superior Ct. 190, 195, 198 A. 901.
The order of the Commission is affirmed.