Duquesne Light Co. v. Upper St. Clair Tp.

• Decision Date: 24 May 1954
• Citation: 377 Pa. 323,105 A.2d 287
• Parties: , 4 P.U.R.3d 358 DUQUESNE LIGHT CO. v. UPPER ST. CLAIR TP. et al. Appeal of REED et ux.
• Court: Pennsylvania Supreme Court

Page 287

105 A.2d 287

377 Pa. 323, 4 P.U.R.3d 358

DUQUESNE LIGHT CO. v. UPPER ST. CLAIR TP. et al.

Appeal of REED et ux.

Supreme Court of Pennsylvania.

May 24, 1954.

Rehearing Denied June 4, 1954.

C. Francis Fisher, Brenlove & Fisher, Pittsburgh, for Upper St. Clair tp.

John B. Nicklas, Jr., McCrady & Nicklas, Pittsburgh, for St. Clair Country Club.

Louis Vaira, Pittsburgh, for Edward O. Reed and Alberta G. Reed, for appellant.

Elder W. Marshall, Reed, Smith, Shaw & McClay, Robert F. Banks, Henry G. Wasson, Jr., Walter T. Wardzinski, Pittsburgh, for Duquesne Light Co.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

CHIDSEY, Justice.

These appeals are from the action of the Court of Common Pleas of Allegheny County in awarding a preliminary injunction enjoining the first class Township of Upper St. Clair, Allegheny County, and its officers from enforcing a zoning ordinance against the Duquesne Light Company, a public utility corporation (hereinafter called 'Duquesne').

Following the filing on February 23, 1954 of the complaint in equity in which the plaintiff Duquesne sought the injunction against the township, its commissioners and police officer, the defendants named in the suit, a hearing was had on March 5, 1954 and testimony adduced by the complainant. Counsel appeared for the defendants and cross-examined the witnesses called by the plaintiff. On March 25, 1954 the chancellor (Judge Sara Soffel) filed her adjudication granting the prayer of the bill. From the chancellor's findings which are supported by the evidence and not here challenged, the facts may be stated as follows: Duquesne is engaged in the generation, transmission, distribution and sale of electric energy in the City of Pittsburgh and other municipalities in Allegheny, Beaver and Westmoreland Counties. It has constructed and is now operating a power plant known as 'Elrama Power Station', located in parts of Beaver Borough, Allegheny County, and Union Township, Washington County, in which energy is generated by two generating units. It has constructed and operates a substation at Woodville, Collier Township, Allegheny County, from which electric energy for light, heat and power is distributed locally and transmitted to other parts of the Duquesne system. The demand for electric energy for light, heat and power has increased in the Woodville area and elsewhere in the Duquesne system during recent years and it is essential that additional energy be transmitted to the Woodville substation to care for the increased demand.

A peak kilowatt load has become imposed upon the system with the result that the generating reserve capacity system is only 1.65% of the installed generating power. The minimum generating reserve necessary to provide adequately for maintenance and breakdowns and to insure adequate service to customers is 10%. Duquesne is presently installing at its Elrama Power Station a third generating unit which is to be completed and placed in operation on September 1, 1954. In order to provide sufficient generating capacity to supply the system's peak load demand and to meet the growing requirements of its system, Duquesne proposed to construct a transmission line between the Elrama Power Station and the Woodville distributing substation. This line passes through seven political subdivisions, two boroughs and five townships, including the Township of Upper St. Clair and Collier Township. The location or site of this proposed transmission line from Elrama to Woodville is the result of the studied judgment of Duquesne's Planning, Engineering, Construction and Right-of-Way Departments. The determining factors in the location of the proposed line were efficiency and economy. The new transmission line will be the principal means of transmitting the output of the new generator at Elrama to Duquesne's 69,000-volt ring transmission system and of supplying the increased demand for electrical energy in the area served by the Woodville substation.

In order to construct the new transmission line it became necessary for Duquesne to acquire by purchase or condemnation rights-of-way and easements over a portion of the defendant Upper St. Clair Township which is zoned residential by a township ordinance. Duquesne does not serve any customers in this township, although it has charter rights to do so, but it owns facilities in the township and serves in public in immediately adjoining communities.

On February 28, 1953 Duquesne filed under the Act of May 21, 1921, P.L. 1057, 15 P.S. § 1182, its individual applications with the Pennsylvania Public Utility Commission praying for a determination that the service to be rendered through the proposed condemnation of rights-of-way and easements on and over ten properties in Upper St. Clair Township was necessary and proper for the service, accommodation, convenience and safety of the public. Subsequently some of the Upper St. Clair property owners whose lands were involved in the applications to the Commission appeared before the Commission's hearing examiner and, while having filed no answer or protests to the applications on their merits, moved for their dismissal for lack of jurisdiction in the Commission to entertain them, averring that (1) Duquesne does not serve nor intend to serve the public in Upper St. Clair with electric energy; (2) the Act of May 8, 1889, P.L. 136, as amended by the Act of 1921, does not authorize the Commission to approve the exercise of the right of eminent domain by an electric light, heat or power company for use in a township; and (3) Duquesne had failed to aver in its application that it had complied with a certain zoning ordinance enacted by Upper St. Clair.

The hearing examiner denied the motions to dismiss with leave to file formal petitions to the Commission itself for an interim ruling with respect to the jurisdictional issue raised. He then proceeded to take the evidence offered. Thereafter several of the said property owners filed petitions with the Commission requesting an interim ruling on the jurisdictional issue, which were denied by the Commission. Appeals to the Superior Court from this action by the Commission were quashed and this Court on December 18, 1953 refused leave to appeal from the decisions of the Superior Court.

On February 15, 1954 the Commission, acting on four of the ten applications filed with it by Duquesne, entered orders wherein it determined that the service to be rendered through the proposed condemnation of rights-of-way and easements on and over said four properties was necessary and proper for the service, accommodation, convenience or safety of the public, and certificates of public convenience were issued pursuant thereto. Duquesne has acquired by purchase separate parcels of land and rights-of-way and easements along its proposed line traversing Upper St. Clair Township, including a right-of-way and easement acquired from one J. W. Free in and over his land and the fee in property of Fred K. Becker. On November 17, 1953 and on November 20, 1953, Duquesne, because of the pressing need for electric energy for light, heat and power in the Woodville area and elsewhere throughout its system, and for the completion by September 1, 1954 of the new transmission line contemporaneously with the completion of the third generating unit at Elrama, commenced work on the Free and Becker properties respectively, looking toward the erection of steel towers thereon for the purpose of carrying the new transmission line. On November 30, 1953 the defendant Klancher, a police officer of the township, was duly authorized by the township authorities to serve and did serve on employes of a contractor engaged by Duquesne and then working on the Free and Becker properties, a notice which read in part as follows: 'In compliance with a zoning ordinance set up in the township a Building Permit must be secured, through the office of the Secretary, before any further construction work is herewith permitted. This constitutes a notice of work stoppage, and a fine of $100.00 is assessed the owner or builder for failure to meet these requirements. Each day that a violation is permitted to exist after this notice has been served shall constitute a separate offense.' Upon receipt of these notices, Duquesne and its contractor stopped working on these properties and have not worked there or elsewhere in the township along the proposed transmission lines. The threat of criminal prosecution contained in the notices, causing the work stoppage, interrupted and prevented and continues to interrupt and prevent the commencement and completion by September 1, 1954 of the proposed transmission line, thus hampering the proper generation and transmission of power from the Elrama Power Station to Duquesne's customers served by the system. Unless the proposed transmission line is completed coincident with the completion of the third generator at Elrama on September 1, 1954, the energy generated by such generator will in large measure be unavailable to the Duquesne system under operating or emergency conditions and thereby Duquesne will suffer large revenue losses and incur added expenses in attempting to provide adequate services to its customers. The chancellor also found that there is urgent need for additional energy in the southern part of Duquesne's system and the situation is expected to grow more serious by the winter of 1954-55 unless the energy generated by the new generating unit at Elrama is transmitted over the proposed transmission line and that unless Duquesne was permitted to resume the construction of the line in and over the township by March 15, 1954, it would not be possible for Duquesne to complete its contruction coincident with the completion of the new generator.

The chancellor granted the prayer of the bill and enjoined the defendants from prosecuting or threatening to prosecute the plaintiff for alleged...