Warminster Township Municipal Authority v. Pennsylvania Public Utility Commission
| Decision Date | 21 January 1958 |
| Citation | 185 Pa.Super. 431,138 A.2d 240 |
| Parties | WARMINSTER TOWNSHIP MUNICIPAL AUTHORITY, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee, and Hartsville Sewerage Company, Intervening Appellee. |
| Court | Pennsylvania Superior Court |
Argued October 1, 1957
Appeal, No. 315, Oct. T., 1957, from orders of Pennsylvania Public Utility Commission, June 10, 1957, Docket 83658 Folders 1 and 2, in case of Warminster Township Municipal Authority v. Pennsylvania Public Utility Commission. Order affirmed.
Proceeding upon application for right to incorporate a sewerage company and to have franchise rights for specified area.
Order entered granting certificate of public convenience. Municipal authority appealed.
The order is affirmed, at the cost of appellant.
Peter Platten, with him Richardson Blair and Ballard, Spahr, Andrews & Ingersoll, for authority appellant.
Louis J. Carter, Assistant Counsel, with him Jack F Aschinger, Assistant Counsel, and Thomas M. Kerrigan, Acting Counsel, for Pennsylvania Public Utility Commission, appellee.
Paul H. Rhoads, with him Frederick E. Smith and Rhoads, Sinon & Reader, for applicant, intervening appellee.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
This is an appeal from an order of the Pennsylvania Public Utility Commission; the sufficiency of the evidence to support the order of the commission is the question presented by appellant.
The commission, on June 10, 1957, ordered that certificates of public convenience be issued to the Hartsville Sewerage Company (hereinafter called "Hartsville") evidencing the commission's approval of its incorporation, organization, and creation, and authorizing the beginning of the exercise of the right, power, or privilege of furnishing sewage collection and disposal service to the public in a designated portion of Warminster Township, Bucks County. [1] The order requires Hartsville to obtain a permit from the Department of Health before beginning to render service. Hartsville had previously obtained Letters Patent from the Secretary of the Commonwealth under the Act of April 29, 1874, P.L. 73, as amended, 15 PS § 1, et seq. This appeal has been taken by the Warminster Township Municipal Authority (hereinafter called "Authority") which also has the authority and proposes to render sewerage service in the same area. It is the only appellant.
The applications of Hartsville for approval of its incorporation and of the right to begin to render sewage collection and disposal service were filed with the commission on October 3, 1956. On November 3, 1956, the Authority filed a motion to dismiss the applications, which motion the commission denied. On November 10, 1956, the Authority filed protests to the granting of the applications. Hearings were held on November 16, 1956, and April 5, 1957. Argument was held before the commission; the order approving the applications of Hartsville for certificates of public convenience was then issued.
Hartsville was being organized for the purpose of constructing and maintaining sewers, conduits, and disposal facilities to furnish sewage collection and disposal service to the public in an area of approximately eight hundred acres situate in the northwesterly portion of Warminster Township. The area is bounded on the north by Little Neshaminy Creek, into which Hartsville proposes to discharge the effluent from its plant. At the time of this proceeding, this area was essentially rural with a few houses. Four of the incorporators of Hartsville are real estate developers who contemplate the construction of approximately one thousand eight hundred houses in the proposed service territory, one hundred to three hundred of which are planned for construction in the first year of Hartsville's operation. Prior to the construction of the houses in the developments and the paving of streets therein, the developers desire to install the necessary sewerage facilities in order to preclude the tearing up and repaving of streets as each dwelling is constructed and ready to be connected to the sewerage system. The area at present has no sewerage facilities. Except for Hartsville, there is no present prospect that any such service will be established. The Authority, which was created under the Municipality Authorities Act of May 2, 1945, P.L. 382, 53 PS § 301, was designated by the Board of Supervisors of Warminster Township, on February 7, 1955, as the sole and exclusive instrumentality for constructing and operating a public sewerage system within the township. On March 10, 1955, the supervisors directed the Authority to undertake a study, and to develop plans encompassing the township sewage problem. A resolution of March 5, 1956, authorized the Authority to acquire and operate a sewerage system and sewage treatment and disposal works. However, notwithstanding these resolutions, the Authority was unable to proceed. Its chairman testified: "The Authority has no present funds available to it and no present source of revenue with which to support the issuance of sewer revenue bonds in an amount sufficient to pay for the cost of construction of either the plant which the developers desire to construct or the plant which the Authority desires to construct." The Authority cannot raise the funds because there is an insufficient number of residents in the area at present. It was the Authority's proposal that the developers place sufficient funds in escrow to cover the cost of construction of a plant by the Authority, and that the developers install all sewerage facilities within their own tracts. The Authority would later reimburse them for the money placed in escrow. Alternate proposals would have the developers guarantee payment to the Authority of sufficient funds to operate and to issue bonds for the cost of constructing the plant and sewerage facilities, or have the developers build the plant and give the Authority an option to purchase. In substance the Authority desired that the developers finance the plant and facilities for the Authority.
The Authority has acquiesced in the jurisdiction of the commission to grant the certificates of public convenience to Hartsville, and does not contend that it alone has the right to render sewerage service to residents of the township. On this appeal the contention of the Authority is that the grant of authority to Hartsville to incorporate and render public sewerage service in the area is not supported by substantial evidence of the necessity for such service. It is argued that there were no public witnesses to the need for sewerage service in the area other than the real estate developers and their engineers, and that their testimony concerning the planned developments is insufficient to support the order of the commission.
It is fundamental that the burden was upon Hartsville to establish a public need for the proposed service, the lack or inadequacy of existing facilities, as well as its own ability to render the proposed service. Modern Transfer Company v. Pennsylvania Public Utility Commission, 179 Pa.Super. 46, 51, 115 A.2d 887. What may constitute a need for service depends upon the locality involved and the particular circumstances of each case. Noerr Motor Freight, Inc. v. Pennsylvania Public Utility Commission, 181 Pa.Super. 322, 330, 124 A.2d 393. There is no legal requirement that the commission's order must be supported by any particular type of evidence as long as the evidence is legally sufficient. Pittsburgh & Lake Erie Railroad Co. v. Pennsylvania Public Utility Commission, 170 Pa.Super. 411, 420, 85 A.2d 646. If the testimony is competent, its weight is for the commission. H. J. Gongaware & Sons v. Pennsylvania Public Utility Commission, 163 Pa.Super. 9, 10, 60 A.2d 364. The evidence may come from public witnesses, from prospective customers, from the applicant, or from other sources. On the question of necessity, Hartsville produced four of its incorporators as witnesses; they were also the four real estate developers. They testified that they propose to build approximately one thousand eight hundred houses, one hundred to three hundred of which will be built in the first year; that the area at present is essentially rural with a few houses; that there are no existing sewerage facilities; and that it is necessary that the sewerage system and disposal plant be built concurrently with the developments in order to avoid the additional expense and inconvenience of later tearing up the streets. (Even the chairman of the Authority testified that it was "necessary and desirable" that the sewerage system and disposal plant be constructed concurrently with the developments.) There were no public or other witnesses called by Hartsville as to the need for service. The reason for the absence of any public or other witnesses is apparent because, until the developments are started, there are no customers who would need the service. Moreover, until Hartsville is authorized to build the sewerage system and disposal plant the developers cannot, as a practical matter, begin the construction of the houses. It was not essential that public or other witnesses be produced; the absence of such witnesses, with any resulting implication, is adequately explained by the circumstances of this case.
The Authority also...
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