Municipal Authority of Blythe Tp., Schuylkill County v. Pennsylvania Public Utility Commission

• Citation: 191 Pa.Super. 542,159 A.2d 256
• Parties: MUNICIPAL AUTHORITY OF THE TOWNSHIP OF BLYTHE, COUNTY OF SCHUYLKILL, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee, and Borough of Schuylkill Haven, Intervening Appellee.
• Decision Date: 24 March 1960
• Court: Pennsylvania Superior Court

159 A.2d 256

191 Pa.Super. 542

MUNICIPAL AUTHORITY OF THE TOWNSHIP OF BLYTHE, COUNTY OF

SCHUYLKILL, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee, and Borough of Schuylkill Haven, Intervening Appellee.

Superior Court of Pennsylvania.

March 24, 1960.

Burke, Bowe, Dolbin & Heffner, Donold D Dolbin, Pottsville, for appellant.

Edward Munce, Asst. Counsel, Thomas M. Kerrigan, Counsel Harrisburg, for appellee.

Anson W. H. Taylor, Jr., Robert H. Young, of Morgan, Lewis &amp Bockius, Philadelphia, for intervening appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

RHODES, President Judge.

This is an appeal taken on February 7, 1959, by the Municipal Authority of the Township of Blythe, County of Schuylkill, from an order of the Pennsylvania Public Utility Commission determining its jurisdiction in a rate proceeding. ^[1] The appeal will be dismissed. The jurisdictional issue must be resolved in the first instance by the Court of Common Please of Dauphin County, the tribunal designated by statute as exclusive for its determination before an appeal may be taken to this Court. Section 1111 of the Act of May 28, 1937, P.L. 1053, 66 P.S. § 1441.

On February 28, 1958, the Borough of Schuylkill Haven filed a tariff supplement with the commission in which it proposed to substitute and apply its regular water rate schedule for water which appellant, the Municipal Authority of the Township of Blythe, obtains from the Tumbling Run Reservoirs owned by the borough. Previously Blythe Authority made payment for water received from the borough under an indenture dated February 1, 1945, in a manner and amount separate and apart from the regular tariff of the borough. By this indenture the Silver Creek Water Company, predecessor in title to the borough, conveyed certain parcels of land, in connection with the sale of its water works, to the Blythe Authority. It also granted to Blythe Authority, subject to certain conditions, the right to be supplied from the Tumbling Run Reservoirs retained by the grantor any water necessary in drought or emergency to supplement the water supply of Blythe Authority from its own watershed. For this right, which was designated a covenant running with the land, Blythe Authority was obliged to pay a fixed annual fee of $2500 for the first ten years, after which the charge was subject to re-examination. The commission approved this indenture. On November 15, 1945, Silver Creek Water Company sold other water works and properties to the Borough of Schuylkill Haven, including the Tumbling Run Reservoirs. This indenture was subject to the covenant to supply water from Tumbling Run Reservoirs to Blythe Authority, and was approved by the commission. At the expiration of ten years the annual charge was re-examined by the borough and Blythe Authority, but they were unable to agree on a proper charge. Although the 1945 indenture provided for arbitration in such event, such procedure apparently was not utilized. The borough thereafter filed the proposed tariff, which is the subject of this proceeding.

Blythe Authority filed a complaint to the proposed tariff questioning the jurisdiction of the commission and the reasonableness of the proposed tariff in the event the commission had jurisdiction over the matter. Blythe Authority alleged that the commission lacked jurisdiction, inter alia, because (1) Blythe Authority is in receivership and operating under the exclusive jurisdiction of the Court of Common Pleas of Schuylkill County; (2) the prior approval of the indenture by the commission amounted to an adjudication of the matters contained therein; (3) the borough has failed to utilize the remedy of arbitration under the indenture; and (4) the controverted issues do not relate to rates or any other matters within the commission's jurisdiction. In the latter respect it was contended that Blythe Authority had a property right in the water from the Tumbling Run Reservoirs which could not be made the subject of any rate or charge other than as provided in the indenture.

The commission suspended the proposed tariff until February 1 1959, pending determination of the jurisdictional question raised by the Blythe Authority complaint. Hearing was had thereon. On January 5, 1959, the commission filed its decision...