Commonwealth v. Commonwealth

335 A.2d 860, 18 Pa. Commw. 558, 1975 Pa. Commw. LEXIS 946

Opinions

Opinion by

Judge Mencer,

We have for our consideration three related appeals from two final orders of the Pennsylvania Public Utility Commission (Commission) approving applications and granting certificates of public convenience and necessity to The Potomac Edison Company (Potomac) for the right to proceed in eminent domain for an electric transmission line right-of-way across the Franklin County properties of George H. Barmont and Mildred R. Barmont (Barmont) and of Harold D. McCoy and Catherine M. McCoy (McCoy). The Barmont and McCoy properties are contiguous. Consolidated hearings were held on the two applications. Over objection by Potomac, the Commission permitted the Department of Environmental Resources (DER) to intervene in the proceedings relating to the McCoy property.¹

The orders which are the subject of these appeals were both adopted August 6, 1974. DER appealed from the order relating to the McCoy property, and McCoy filed an appeal from each order.² We consolidated these three appeals for argument, and we affirm both orders of the Commission.

Potomac proposes to construct approximately 18.94 miles of electric transmission line on wooden pole H-frame structures. The proposed line would commence in Guilford Township, Franklin County, and terminate in Ayr Township, Fulton County, and would traverse over a proposed right-of-way which would cross the Barmont and McCoy properties. McCoy and DER do not contest the Commission’s conclusions that there is a need for the proposed line.

The issues raised in these appeals relate to the selection of the line location as it affects the Barmont and McCoy properties, whether the proper standards were employed in evaluating the propriety of the route selected, and whether the evidence supports the Commission’s conclusion to approve the route selected by Potomac.

The scope of our review is narrow. Our inquiry is as to whether the Commission’s orders granting certificates of public convenience should be vacated or set aside for error of law or lack of supporting evidence or for violation of constitutional rights. Public Utility Law, Act of May 28, 1937, P. L. 1053, §1107, a.s amended, 66 P.S. §1437. We may not exercise our independent judgment on the record. Clemmer v. Pennsylvania Public Utility Commission, 207 Pa. Superior Ct. 388, 217 A. 2d 800 (1966). If there is substantial evidence in support of the order of the Commission, we may not set it aside. Substantial evidence is such relevant evidence as a reasonable mind can accept as adequate to support a conclusion.

As we stated in Lesher v. American Telegraph and Telephone Company, 1 Pa. Commonwealth Ct. 522, 525, 276 A. 2d 325, 326-27 (1971), when considering a companion and comparable act empowering telephone and telegraph companies to appropriate private real estate for the construction, erection, operation, or maintenance of their lines:

“The selection of the right-of-way is a matter for the public utility and will not be set aside unless the powers conferred upon the public utility are wantonly, capriciously or arbitrarily exercised. West Penn Power Co. v. Pennsylvania Public Utility Commission, 199 Pa. Superior Ct. 25, 184 A. 2d 143 (1962). The failure to select a route which would reduce the inconvenience to the landowners does not constitute grounds for withholding the exercise of the power to condemn the easement. Stone v. Pennsylvania Public Utility Commission, 192 Pa. Superior Ct. 573, 162 A. 2d 18 (1960). In Schenck v. Pittsburgh, 364 Pa. 31, 36, 70 A. 2d 612, 614 (1950), we find the standard for the proper exercise of the power of eminent domain when the Court stated: ‘It has been held in many cases that where the right of eminent domain is vested in a municipality, an administrative body, or even a private corporation, the question as to whether the circumstances justify the exercise of the power in a given instance is not a judicial one, at least in the absence of fraud or palpable bad faith.’ ”

In Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 338 n. 1, 105 A. 2d 287, 294 n. 1 (1954), it was stated:

“. . “Under a delegation of the power of eminent domain the grantee of the power, in the absence of legislative restriction, may determine the location of the land [to be] acquired, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respect beyond the privilege conferred by the charter or statute. The landowner cannot raise the objection that there is no necessity for condemning the property because some other location might be made”. .

We have read and studied the record and are convinced that the Commission’s conclusion that the route selected by Potomac was reasonable was correct, and we find that the condemnation of the easement required was in accord with Potomac’s right to appropriate private real estate under the provisions of Section 4 of the Act of May 8, 1889, P. L. 136, as amended, 15 P.S. §3272.

The record discloses that prior to final route selection Potomac studied the area’s topography, evaluated terrain and contours, considered vegetation and land use, considered alternative routes, evaluated each proposed route for compliance with federal government guidelines, analyzed each route’s compatibility with system reliability, considered impact of proposed routes upon the environment, made safety and economic evaluations, calculated construction and maintenance costs, and conducted a detailed survey of the area to be affected by the route selected. There is simply no evidence in this record sufficient to support a conclusion that Potomac’s final route selection was wanton, capricious, or made in palpable bad faith. Rather, it was based on a consideration of relevant and germane factors.

Although a witness for McCoy testified to four alternative routes which would place the electric transmission line approximately 400 feet to the rear of the McCoy farmhouse and outbuildings,³ rebuttal testimony by Potomac established that each of these four suggested routes would entail additional construction costs, varying from $11,590 to $24,880, and would require additional rights-of-way from adjacent property owners and renegotiation with three property owners of already acquired rights-of-way.

Admittedly, there was testimony that indicated Potomac should have selected some other route but, as we have noted, the selection of the right-of-way is a matter for the public utility and will not be set aside unless the powers conferred upon the public utility are wantonly, capriciously, or arbitrarily exercised. This record does not disclose such exercise of powers by Potomac.

McCoy and DER further contend that the Commission erred in law in failing to evaluate Potomac’s applications under Article I, Section 27, of the Pennsylvania Constitution. This constitutional provision declares that the people have the right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment and requires the Commonwealth as trustee to conserve and maintain the Commonwealth’s natural resources.⁴ We have held that this provision is self-executing. Commonwealth v. National Gettysburg Battlefield Tower, Inc., 8 Pa. Commonwealth Ct. 231, 302 A. 2d 886 (1973), aff’d, 454 Pa. 193, 311 A. 2d 588 (1973).⁵

McCoy and DER argue here that it is the Commission’s constitutional duty to proscribe this transmission line if it will have any effect on the interests enumerated in Article I, Section 27. Further, they assert that there is an affirmative burden on the Commission to represent the public interest and that it is the Commission’s minimum duty to make a complete record by investigating all pertinent facts and to see that they are adduced of record when the parties before the Commission have not done so.

We do not conclude that such an affirmative duty rests with the Commission or that the absolute interpretation urged upon us here is required. Our awareness of the ramifications of such a stance caused us to point out in Gettysburg that “[i]t is difficult to conceive of any human activity that does not in some degree impair the natural, scenic and esthetic values of any environment. If the standard of injury to historic values is to be that expressed by the Commonwealth’s witnesses as an ‘in trusión’ or ‘distraction,’ it becomes difficult to imagine any activity in the vicinity of Gettysburg which would not unconstitutionally harm its historic values.” 8 Pa. Commonwealth Ct. at 249, 302 A. 2d at 895.

Our view of this difficult question was propounded in Payne v. Kassab, 11 Pa. Commonwealth Ct. 14, 29-30, 312 A. 2d 86, 94 (1973), when we stated the following:

“We hold that [Article I] Section 27 was intended to allow the normal development of property in the Commonwealth, while at the same time constitutionally affixing a public trust concept to the management of public natural resources of Pennsylvania. The result of our holding is a controlled development of resources rather than no development.

“We must recognize, as a corollary of such a conclusion, that decision makers will be faced with the constant and difficult task of weighing conflicting environmental and social concerns in arriving at a course of action that will be expedient as well as reflective of the high priority which constitutionally has been placed on the conservation of our natural, scenic, esthetic and historical resources.

“Judicial review of the endless decisions that will result from such a balancing of environmental and social concerns must be realistic and not merely legalistic. The court’s role must be to test the decision under review by a threefold standard: (1) Was there compliance with all applicable statutes and regm lations relevant to the protection of the Commonwealth’s public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?”

The hearings held relative to the applications here did not have as their central focal point a recognition of this standard. However, our application of this threefold standard to the record before us in the instant case does not compel us to reverse the challenged orders of the Commission.

We hold to the view that the burden to affirmatively support an application for a certificate of public convenience rests upon the applicant. Since the adoption of Article I, Section 27, that burden has not shifted but, once the adverse impact of the certificate of public convenience sought by applicant upon the interests of Article I, Section 27, is raised by a protestant or intervenor, then the applicant’s burden is intensified, and the Commission, in the first instance, and, in the event of appeal, tiie review court, must be satisfied that the threefold standard enunciated in Payne v. Kassab, supra, is met.

Finding no abuse of discretion of error of law, we make the following

Order

And Now, this 10th day of April, 1975, the Pennsylvania Public Utility Commission’s orders adopted August 6, 1974, relative to The Potomac Edision Company, are hereby affirmed.

Footnotes

1

. The propriety of such intervention is not raised by any of the parties to these appeals. At oral argument the DER asserted, without the citing of authority, its standing to intervene. We do no decide the issue of standing, relative to DER, in this case.

2

. McCoy had been permitted by the Commission to intervene in the Barmont proceeding.

3

. The route selected by Potomac would pass approximately 1100 feet to the front of the McCoy farmhouse.

4

. The McCoy farmhouse is alleged to be an historic site. The Commission determined that the route selected by Potomac would not endanger the “McCoy dwelling as a historic site.”

5

. In the Supreme Court’s affirmance, by a 5-2 decision, four Justices expressed their views on the question of whether the provisions of Article I, Section 27 of the Pennsylvania Constitution are self-executing, and they were equally divided on this point. The three other Justices of the Court did not express opinions on this question but supported the affirmance on other considerations, thus reaching a majority result rather than a majority decision.