Pa. Chautauqua v. Public Service Commission

• Decision Date: 04 May 1932
• Docket Number: 10-1932
• Citation: 160 A. 225,105 Pa.Super. 160
• Parties: Pa. Chautauqua, Appellant, v. Public Service Commission et al
• Court: Pennsylvania Superior Court

160 A. 225

105 Pa.Super. 160

Pa. Chautauqua, Appellant, v. Public Service Commission et al

No. 10-1932

Superior Court of Pennsylvania

May 4, 1932

Argued March 21, 1932

Appeal by the Pennsylvania Chautauqua, from finding, determination and order of the Public Service Commission at Complaint Docket 8471, 1930, in the case of The Pennsylvania Chautauqua v. The Public Service Commission of the Commonwealth of Pennsylvania, Herbert L. Hutchinson and Josephine L Hutchinson intervening appellees.

Complaint against The Pennsylvania Chautauqua. Before the Public Service Commission.

The facts are stated in the opinion of the Superior Court.

The Public Service Commission ordered The Pennsylvania Chautauqua to file, post and publish a schedule of rates and otherwise to comply with the requirements of the Public Service Company Law. The Pennsylvania Chautauqua appealed.

Error assigned, among others, was the order of the Public Service Commission.

Affirmed.

Wm. H Earnest, and with him E. E. McCurdy and Joel G. Earnest, for appellant, cited: Root v. Commonwealth, 98 Pa. 170; Overlook Development Company v. Public Service Commission, 101 Pa.Super. 217; Commonwealth v. Benn, 284 Pa. 421.

Douglass D. Storey, for intervening appellee, cited: Terminal Taxicab Company v. Kutz, 241 U.S. 252; Beetem v. Carlisle Light, Heat & Power Company, 273 Pa. 82; Riddle v. Aspinwall-Delafield Company, 5 Pa. P. S.Ct. 459.

John Fox Weiss, Counsel, and with him E. Everett Mather, Jr., Assistant Counsel, for The Public Service Commission, appellee, cited: City Transfer Company v. Public Service Commission et al., 93 Pa.Super. 210; Lloyd v. Haugh, 223 Pa. 148; Com. ex rel. Baldridge v. Philadelphia Electric Company, 300 Pa. 577.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Gawthrop, J.

Appellant is a corporation of the first class, its corporate purpose as stated in its charter granted by the court of common pleas of Lebanon County, June 13, 1892, being "the advancement of literary and scientific attainment among the people and the promotion of popular culture in the interests of Christianity." It has an authorized capital stock of $ 30,000, of which $ 8,500 par value is issued and outstanding. Incidental to its purpose it acquired a tract of about ninety acres of land which it laid out into building lots and streets. Lots were sold to various persons who erected cottages thereon, the number of cottages now being about one hundred and fifty. The development is popularly known as Mt. Gretna. Appellant installed a sewage system and a water supply system and furnished service from these systems at uniform fixed charges. In 1914 it applied to the Commissioner of Health for a permit under the Act of April 22, 1905, P. L. 260, for approval of its source of supply of water to the public and received the permit. Appellant's stockholders and water consumers are not identical, some consumers not being stockholders. The character of the community has changed from the original plan of a place for education and cultural development to a summer resort, although several of the cottages are occupied during the entire year. In 1926 the Borough of Mt. Gretna was incorporated with municipal limits identical with those of the tract of land acquired by appellant. In 1927 the borough granted local consent franchises to the Bell Telephone Company of Pennsylvania and to the Metropolitan Edison Company to occupy the public streets and highways with their public service facilities. In 1930 the borough enacted an ordinance adopting as public highways the streets originally laid out by appellant. Its mains and service lines are in these public highways. At the present time it supplies about one hundred and fifty-two consumers of water within the borough, among whom are the intervening appellees. On August 16, 1930, appellant cut off the water supply which it has been furnishing to the cottage occupied by the intervening appellees, alleging that they were delinquent in the payment of their water service rent, sewer rent and maintenance assessment. On the same day the intervening appellees paid all of the charges except an assessment of $ 34.50 for upkeep of the grounds, and demanded the restoration of water service. Appellant refused to restore the water service until the other assessment was paid. Whereupon, the intervening appellees filed their complaint with the Public Service Commission seeking the restoration of water service and asking for an order requiring appellant to continue to supply them with water and to file, post and publish a schedule of rates and otherwise to comply with the requirements of the Public Service Company Law. After a hearing the Commission found that appellant was acting as a Public Service Company in the supply of water to the public in the Borough of Mt. Gretna, and filed an order directing it forthwith to restore water service to the cottage of the intervening appellees. From that order this appeal was taken.

The main question is whether appellant, in serving the intervening appellees with water was rendering a public service and is, therefore, subject to the jurisdiction of the Public Service Commission as to its water service. The Commission found that it is. The able counsel for appellant strenuously contend that it is not subject to the regulation of the Commission because (1) it is a corporation of the first class, not for profit, and that the supplying of water by it is entirely incidental to the purpose for which it was created; and (2) it serves water only under private contract.

As was stated by Mr. Justice Holmes in a leading case...