Borough of Lansdale v. Philadelphia Elec. Co.

• Decision Date: 22 May 1961
• Parties: BOROUGH OF LANSDALE, Appellant, v. PHILADELPHIA ELECTRIC CO. and Pennsylvania Power and Light Company.
• Court: Pennsylvania Supreme Court

170 A.2d 565

403 Pa. 647

BOROUGH OF LANSDALE, Appellant, v. PHILADELPHIA ELECTRIC CO. and Pennsylvania Power and Light Company.

Supreme Court of Pennsylvania.

May 22, 1961.

High, Swartz, Roberts & Seidel, Aaron S. Swartz, 3rd Norristown, for appellant.

Duffy McTighe & McElhone, Desmond J. McTighe, Norristown, Dilworth Paxson, Kalish, Kohn & Dilks, Harold E. Kohn, Vincent P McDevitt, Samuel G. Miller, Robert P. Garbarino, Bruce W. Kauffman, Philadelphia, for appellee Philadelphia Electric Co.

Vincent, Butler, Austin Gavin, Edward H. Feege, Allentown, for appellee Pennsylvania Power and Light Co.

Northcutt Ely, Washington, D. C., Gen. Counsel, American Public Power Ass'n, Ely, Duncan & Bennett, Washington, D. C., of counsel, for American Public Power Ass'n, as amicus curiae.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

COHEN, Justice.

The Borough of Lansdale, appellant, sought a declaratory judgment in the court below to assert its exclusive right under the authority of the Borough Code, ^[1] to sell electricity in an area recently annexed by the Borough but presently serviced by the Philadelphia Electric Company (Company), appellee.

The lower court dismissed the petition on the grounds that jurisdiction of the subject matter is vested solely in the Pennsylvania Public Utility Commission, and the Borough appealed.

It is unquestioned that the Public Utility Code gives the Pennsylvania Public Utility Commission (PUC) exclusive and comprehensive regulatory jurisdiction over appellee's activities. ^[2] On the other hand it is readily acknowledged that a borough, to the exclusion of the PUC, has jurisdiction over its own electric service when confined within the borough's boundaries. In fact, the Borough Code prohibits the introduction of electric current into the Borough without the consent of the Borough authorities. ^[3] The PUC, however, has jurisdiction over any portion of the Borough's service which extends beyond the limits of the Borough. ^[4]

The problem here is to determine whether a utility which has been granted a certificate of public convenience by the PUC for the rendition of electricity in an area may, without prior approval of the PUC, be required by decree of the court of common pleas to abandon or surrender that service because the area was recently annexed by a borough.

Although we still possess the right of judicial scrutiny over the acts of the PUC, ^[5] no principle has become more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC--not in the courts. It has been so held involving rates, ^[6] service, ^[7] rules of service, ^[8] extension and expansion, ^[9] hazard to public safety due to use of utility facilities, ^[10] installation of utility facilities, ^[11] location of utility facilities, ^[12] obtaining, alerting, dissolving, abandoning, selling or transferring any right, power, privilege, service, franchise or property ^[13] and rights to serve particular territory. ^[14]

The Public Utility Code requires a certificate of public convenience to be obtained before any public utility can dissolve abandon, surrender, in whole or in part, any service or transfer by any method whatsoever any tangible or intangible property used in the public service. ^[15] Nevertheless, the Borough desires a court to initially determine whether the appellee must dissolve, abandon, sell, transfer or discontinue its already obtained franchise privilege to render service in this newly annexed area. Our courts do not possess the jurisdiction to make such a determination.

Although the Borough is armed with the provisions of the Borough Code, ^[16] it can only effectuate its purpose by initially proceeding before the PUC. The Public Utility Code contemplates such procedures by providing that:

'The commission, or any person, corporation, or municipal corporation having an interest in the subject matter, or any public utility concerned, may complain in writing, setting forth any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the commission has jurisdiction to administer, or of any regulation or order of the commission. * * *' Emphasis supplied) ^[17]

Initial jurisdiction over the instant controversy is vested in the PUC and the available administrative remedies must be resorted to before the courts can exercise their power of review.

Order affirmed.

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Notes:

^[1] Act of May 4, 1927, P.L. 519, as amended 53 P.S. § 47470.

^[2] Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. §§ 1101-1562.

^[3] Act of May 4, 1927, P.L. 519, as amended, 53 P.S. § 47470.

^[4] Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. § 1122(g).

^[5] Cheltenham and Abington Sewerage Co. v. Pa. P.U.C., 1942, 344 Pa. 366, at page 372, 25 A.2d 334, at page 338:

'The review of orders of the commission by the courts is a judicial function whereby it is determined whether the commission has acted within its delegated powers and within the constitution.'

^[6] Cheltenham and Abington Sewerage Co. v. Pa. P.U.C., 1942, 344 Pa. 366, 25 A.2d 334; Bellevue Borough v. Ohio Valley Water Co., 1914, 245 Pa. 114, 91 A. 236; Sheets v. Pa. P.U.C., 1952, 171 Pa.Super. 151, 90 A.2d 633; State College Borough Authority v. Pa. P.U.C., 1943, 152 Pa.Super. 363, 31 A.2d 557.

^[7] Reading Co. v. Pa. P.U.C., 1958, 188 Pa.Super. 146, 146 A.2d 746; Latrobe Bus Service v. Pa. P.U.C., 1954, 175 Pa.Super. 164, 103 A.2d 442; City of Altoona v. Pa. P.U.C., 1951, 168 Pa.Super. 246, 77 A.2d 740; Ambridge Borough v. Pa. P.U.C., 1939, 137 Pa.Super. 50, 8 A.2d 429.

^[8] Hickey v. Philadelphia Electric Company, 1936, 122 Pa.Super. 213, 184 A. 553; Beaver Valley Water Co. v. Public Service Commission, 1918, 70 Pa.Super. 621.

^[9] Lower Chichester Twp. v. Pa. P.U.C., 1956, 180 Pa.Super. 503, 119 A.2d 674; Willits v. Pa. P.U.C., 1956, 183 Pa.Super. 62, 128 A.2d 105.

^[10] Midland Borough v. Steubenville, etc., Traction Co., 1930, 300 Pa. 134, 150 A. 300; Reading Co. v. Pa. P.U.C., 1958, 188 Pa.Super. 146, 146 A.2d 746; Postal Telegraph-Cable Co. v. Pa. P.U.C., 1943, 154 Pa.Super. 340, 35 A.2d 535.

^[11] York Water Co. v. City of York, 1915, 250 Pa. 115, 95 A. 396; Willits v. Pa. P.U.C., 1956, 183 Pa.Super. 62, 128 A.2d 105.

^[12] Lower Chichester Twp. v. Pa. P.U.C., 1956, 180 Pa.Super. 503, 119 A.2d 674; Willits v. Pa. P.U.C., 1956, 183 Pa.Super. 62, 128 A.2d 105.

^[13] New Brighton Borough v. New Brighton Water Co., 1915, 247 Pa. 232, 93 A. 327; General Telephone Co. of Pa. v. Pa. P.U.C., 1960, 192 Pa.Super. 563, 161 A.2d 906; Pittston Gas Co. v. Pa. P.U.C., 1959, 190 Pa.Super. 365, 154 A.2d 510; Newport Home Water Co. v. Pa. P.U.C., 1954, 174 Pa.Super. 522, 102 A.2d 221; Pottstown Borough v. Pa. P.U.C., 1941, 144 Pa.Super. 220, 19 A.2d 610.

^[14] Fogelsville and Trexlertown Electric Co v. Pa. Power and Light Co., 1921, 271 Pa. 237...