West Penn Power Co. v. Pennsylvania Public Utility Commission

643 A.2d 125, 164 Pa. Commw. 1, 1994 Pa. Commw. LEXIS 270
CourtCommonwealth Court of Pennsylvania
DecidedMarch 16, 1994
StatusPublished

This text of 643 A.2d 125 (West Penn Power 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
West Penn Power Co. v. Pennsylvania Public Utility Commission, 643 A.2d 125, 164 Pa. Commw. 1, 1994 Pa. Commw. LEXIS 270 (Pa. Ct. App. 1994).

Opinion

KELLEY, Judge.

Before the court is an appeal by West Penn Power Company (West Penn) from a decision of the Pennsylvania Public Utility Commission (PUC) dividing a disputed service territory between West Penn and Metropolitan Edison Company (Met-Ed).

In 1916 the Public Service Commission (PSC), the predecessor to the PUC, issued a certificate of public convenience to the Franklin Township Power & Light Company, the predecessor of Met-Ed, authorizing it to provide electric utility service to all of Franklin Township in Adams County. In 1927, the PSC issued a certificate of public convenience to the West Franklin Township Adams Electric Corporation, the predecessor of West Penn, authorizing it to provide electric utility service to a portion of Franklin Township, an area covered by the certificate previously issued to Met-Ed’s predecessor. This portion of the township constitutes the disputed territory. There is no evidence of record that the PSC intended, by issuing the 1927 certificate, to revoke the certificate issued in 1916 to any degree, and there is no evidence of record that Met-Ed’s predecessor participated in or was provided notice of the 1927 proceeding.1

Met-Ed has been providing service in the disputed territory since 1939 and, as of the date of the hearing below, Met-Ed has sixty customers in the disputed territory. Almost all of Met-Ed’s customers are located on the eastern side of Route 234 and Newman Road.2 Conversely, almost all of West Penn’s customers in the disputed territory are on the western side of Route 234 and Newman Road.

In December of 1988, the developer of a residential development known as Mountain Top Estates applied to Met-Ed for electric service. Mountain Top Estates is located at the southwest corner of the intersection of Routes 30 and 234 and Newman Road. In February of 1989, West Penn advised MetEd that Mountain Top Estates was located within West Penn’s territory and that West Penn would provide service.

In January of 1990, West Penn constructed electric distribution facilities, duplicating Met-Ed’s existing facilities, in order to provide service to a residence and service station (Kimple residence) which had to that date been served by Met-Ed. The Kimple resi[127]*127dence is located on the eastern side of Route 234.

On March 6, 1990, Met-Ed filed a petition for declaratory order with the PUC requesting that the PUC resolve the boundary dispute. On March 26, 1990, West Penn filed an answer and new matter, a petition to intervene, and a motion asking that the PUC order Met-Ed to serve its petition to, among others, Met-Ed’s customers in the disputed territory. On April 23,1990, West Penn filed its own petition for declaratory order also requesting that the PUC resolve the boundary dispute.

By order of May 23, 1990, an administrative law judge (ALJ) directed that the petitions of Met-Ed and West Penn be consolidated for hearing and decision. By order of June 21, 1991, a second ALJ3 granted, in part, the motion filed by West Penn requesting that Met-Ed be directed to provide notice of its petition to various entities. The ALJ requested that the Secretary of the Commission publish notice of the proceedings in the Pennsylvania Bulletin and the ALJ ordered Met-Ed to publish notice of the proceedings in a newspaper of general circulation.4

The ALJ ultimately issued a decision establishing the center lines of Route 234 and Newman Road as the boundary line with Met-Ed authorized to provide service east of the line and West Penn authorized to provide service west of the line. The decision also stated that both parties could continue to render service to customers on either side of the boundary line who were already receiving service. By order of April 2, 1993, the PUC adopted the decision of the ALJ. This appeal by West Penn followed.

This court’s scope of review of an adjudication of the PUC is limited to determining whether any constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by substantial evidence. Glade Park East Home Owners Association v. Pennsylvania Public Utility Commission, 156 Pa.Commonwealth Ct. 466, 628 A.2d 468 (1993).

West Penn first argues that the PUC erred in determining that Met-Ed and West Penn have overlapping service territories. West Penn appears to be arguing that because the policy of the PSC (and of the PUC today) was that electric utilities should not be permitted to compete in the same service area, the effect of the certificate of convenience granted to West Penn’s predecessor in 1927 could not have been to create overlapping service territories, and the PSC must have intended to give the rights to the territory to West Penn.

West Penn does not cite any authority to support the idea that it was improper or illegal for the PSC to create an overlapping territory in 1927. Although the parties do not dispute that the policy of the PSC and the PUC was and is not to allow competition between electric utilities in the same service area, Met-Ed points out in its brief that there is a difference between not allowing competition and not allowing overlapping service areas. For example, the PSC could have intended to create an overlapping territory for the disputed territory in this case, which was a rural area in 1927, so that either company could serve new customers in the area if it so chose. Or the intent could have been to give the customers some choice in a situation where neither company had previously constructed facilities in the area. Then, over time, as the utilities extend service into the region the PSC (or PUC) could divide the territory and modify the certificates as it is doing in the present case.

We are not saying that this scenario is an accurate depiction of the intent of the PSC in 1927. We are merely pointing out that it is impossible for this court or the PUC to say, with this record, what the intent of the PSC was in granting the certificate of convenience to West Penn’s predecessor in 1927. Furthermore, as Met-Ed points out, a certificate of public convenience can only be revoked for cause. Western Pennsylvania [128]*128Water Co. v. Pennsylvania Public Utility Commission, 10 Pa.Commonwealth Ct. 533, 311 A.2d 370 (1973). Absent explicit evidence that the PSC intended to partially revoke, for cause, the certificate granted to Met-Ed’s predecessor in 1916, the PUC did not err in declining to conclude that the PSC had such intent.5

In a related argument, West Penn states that the ALJ and the commission erred in not presuming that West Penn’s predecessor gave notice of its application for a certificate of public convenience to Met-Ed’s predecessor in 1927. This argument is based on a statement in the ALJ’s decision that if West Penn wished to argue that the certification of West Penn’s predecessor to serve part of Franklin Township acted as a partial revocation of the right of Met-Ed’s predecessor to serve all of Franklin Township, West Penn must prove that Met-Ed’s predecessor was given notice and an opportunity to participate in the proceeding.

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Related

Glade Park East Home Owners Ass'n v. Pennsylvania Public Utility Commission
628 A.2d 468 (Commonwealth Court of Pennsylvania, 1993)
Barasch v. Pennsylvania Public Utility Commission
546 A.2d 1296 (Commonwealth Court of Pennsylvania, 1988)
Western Pennsylvania Water Co. v. Commonwealth
311 A.2d 370 (Commonwealth Court of Pennsylvania, 1973)

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Bluebook (online)
643 A.2d 125, 164 Pa. Commw. 1, 1994 Pa. Commw. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-penn-power-co-v-pennsylvania-public-utility-commission-pacommwct-1994.