Rheems Water Co. v. Pennsylvania Public Utility Commission

620 A.2d 609, 153 Pa. Commw. 49, 1993 Pa. Commw. LEXIS 35
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 21, 1993
StatusPublished

This text of 620 A.2d 609 (Rheems Water Co. v. Pennsylvania Public Utility Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rheems Water Co. v. Pennsylvania Public Utility Commission, 620 A.2d 609, 153 Pa. Commw. 49, 1993 Pa. Commw. LEXIS 35 (Pa. Ct. App. 1993).

Opinion

LORD, Senior Judge.

Rheems Water Company (Rheems) petitions this court for review of an order of the Pennsylvania Public Utility Commission (PUC) which conditionally granted its application for a certificate of public convenience to provide water service to West Donegal Township but denied its application for a certificate of public convenience for service to Mount Joy Township.

The conditions the PUC imposed on the certificate related, broadly speaking, to reducing the nitrogen nitrates in the Rheems water supply, improving its service to its customers, improving its unaccounted for water accounts and entering into a bulk water arrangement with Mount Joy Township Authority (MJTA) for the supply of water to MJTA so that MJTA could service homes on East Harrisburg Avenue currently being served by Rheems.

Rheems is a Pennsylvania business corporation duly incorporated on June 26, 1906, for the purpose of supplying water to the public in West Donegal Township. There was no mention of Mount Joy Township in the “letters patent” which were approved by the Water Supply Commission (predecessor to the PUC) on August 18, 1906.

Rheems currently services 362 customers in West Donegal Township and 66 customers in adjacent Mount Joy Township. The Townships are divided by East Harrisburg Avenue, in which Rheems has a water main connecting all its customers. It is unclear how long Rheems has been providing water service to these customers.

In 1975, National Utilities, Inc. (NUI), a regulated public utility, acquired the stock of Rheems. NUI did not obtain PUC approval pursuant to Section 1102 of the Public Utility Code, 66 Pa.C.S. § 1102, prior to acquiring the stock. On June 12, 1989, Rheems filed an application with the PUC for a certificate of public convenience to permit it to provide public water service in West Donegal Township, in portions of East and West Donegal Townships and for 66 customers in Mount Joy Township.

[52]*52The Administrative Law Judge (ALJ) issued his initial decision on May 25, 1991. Exceptions were filed by both parties which were decided in an order issued by the PUC on April 8, 1992. This petition for review followed.

The issues raised by the petitioner Rheems are:

1) Whether the PUC committed an error of law by refusing to recognize Rheems as a “grandfathered” public utility contrary to 66 Pa.C.S. § 103 which recognizes that “[a]ny public utility ... rendering service or having the right to render service on the day preceding the effective date of this part shall be entitled to the full enjoyment and the exercise of all and every right, power and privilege which it lawfully possessed on that date.”
2) Whether the PUC erred when it denied. Rheems’ application to provide water service to certain customers in Mount Joy Township when no other entity can provide the service.
3) Whether the PUC’s decision ordering Rheems to enter into a bulk water agreement with Mount Joy Township Authority amounts to a condemnation of Rheems’ property and equipment, constituting an abuse of discretion.

The original law governing public utilities, known as the Public Service Company Law (Act of July 26, 1913, P.S. 1374, No. 854), was repealed and its provisions reenacted (eventually), as the Public Utility Code, 66 Pa.C.S. §§ 101-3315. Section 103(a) provides a “grandfather” exemption to any company rendering service or having the right to render service prior to the date the Public Utility Code was enacted.

Upon analysis of Rheems’ initial contention that the PUC erred in its refusal to recognize Rheems’ “grandfathered” status, it is apparent that that fact is irrelevant. First, assuming that Rheems is a “grandfathered” utility, none of the conditions imposed by the PUC is interfering in that status. While such a status protects the utility from an interference with its service rights and excuses that utility from the necessity of obtaining a certificate of public convenience, it certainly does not guarantee that the PUC will not [53]*53order it to improve the condition of its water or its service. The grant of a certificate of public convenience is based on a finding that a certificate is necessary to the public convenience, accommodation and safety. In addition to its general enforcement powers, 66 Pa.C.S. §§ 501-502, the PUC may revoke a certificate upon cause shown.

Secondly, if in 1937 Rheems enjoyed the status of a “grandfathered” utility, when it sold its stock in 1975 to NUI, a regulated utility, without PUC approval as required by Section 1102 and in 1989 applied for a certificate of public convenience, it at that time submitted to the jurisdiction of the PUC and was subject to Section 1103 of the Code, 66 Pa.C.S. § 1103, which provides:

1103. Procedure to obtain certificates of public convenience.

(a) General rule. — Every application for a certificate of public convenience shall be made to the commission in writing, be verified by oath or affirmation, and be in such form, and contain such information, as the commission may require by its regulations. A certificate of public convenience shall be granted by order of the commission, only if the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. The commission, in granting such certificate, may impose such conditions as it may deem to be just and reasonable. (Emphasis added.)

The conditions imposed by the PUC relating to the condition of the water and the service were reasonable and just and therefore properly imposed.

By virtue of that same statutory authority, the PUC reversed the ALJ and also conditioned the award of the certificate upon the provision that Rheems enter into a bulk water agreement with MJTA to supply the 66 customers currently serviced by Rheems in Mount Joy on East Harrisburg Avenue.

[54]*54While the Commission is granted great latitude in determining these conditions, Seaboard Tank Lines, Inc. v. Pennsylvania Public Utility Commission, 93 Pa.Commonwealth Ct. 601, 502 A.2d 762 (1985), we are compelled to examine this decision in order to ascertain whether it has abused that discretion.

Administrative Law Judge Lovenwirth made the following findings of fact:

West Donegal Township and Mt. Joy Township are separated by East Harrisburg Avenue (N.T. 10), and on the Mt. Joy side of the boundary line Applicant serves approximately sixty-four residential customers who live immediately adjacent to East Harrisburg Avenue, one institutional customer (Faith Bible Church) situated about seventy-five feet from said highway, and one industrial customer, located far from East Harrisburg Avenue (Wenger’s Feed Mill) (N.T. 15, 17, 18, 76, 77, 155, 156; Mt. Joy Authority Exhibit No. 9). On the West Donegal side of East Harrisburg Avenue, there are 362 customers served over a larger area not restricted to buildings immediately adjacent to East Harrisburg Avenue.
The instant record fails to disclose any provider of public water service, other than Applicant, which is ready, willing and reasonably able to provide public water service in West Donegal Township and in that portion of Mt.

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Related

Fairview Water Co. v. Pennsylvania Public Utility Commission
502 A.2d 162 (Supreme Court of Pennsylvania, 1985)
Seaboard Tank Lines, Inc. v. Pennsylvania Public Utility Commission
502 A.2d 762 (Commonwealth Court of Pennsylvania, 1985)

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Bluebook (online)
620 A.2d 609, 153 Pa. Commw. 49, 1993 Pa. Commw. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rheems-water-co-v-pennsylvania-public-utility-commission-pacommwct-1993.