Philadelphia Suburban Water Co. v. Pennsylvania Public Utility Commission

CONCURRING AND DISSENTING OPINION BY

HOFFMAN, J.:

I concur in the action of the majority affirming the Commission’s certification of Dublin as to the Boyce tract. In my opinion, however, the refusal to certify Dublin as to the Wentz tract is an unwarranted exercise of discretion.

The majority concludes that the granting of Dublin’s application was not supported by the evidence, is an abuse of discretion and constitutes an error of law, because the Commission failed to consider the public interest as distinguished from Dublin’s interest. Yet, the majority similarly concludes that it is in the public interest to grant such certification to Suburban without any basis for such a conclusion.

The majority does not dispute that Dublin is at least equidistant with Suburban to the Wentz tract, if it is not, in fact, closer. Nor does the majority dispute the finding of the Commission that Dublin is fully able to provide adequate service to the Wentz tract.

At the Commission’s hearing, W. T. Weir, Dublin’s engineer, testified at length as to the ability of Dublin to render the proposed service. We have been advised further that Dublin’s third well is now completed and has a capacity of 804,000 gallons per day. Nathan R. Seltzer, applicant’s secretary and chief officer offered evidence showing that Dublin’s stockholders had ample funds to furnish capital for future expansion.

*101In addition, A. J. Westrum, secretary of E & W Corporation, developer of the Wentz tract, testified that the corporation had entered into an agreement with Dublin covering the cost of bringing a water distribution system to the tract. He further testified that he considered installation of service by Dublin to be less expensive than that offered by Suburban.

This evidence would certainly tend to support the Commission’s conclusion that the Wentz tract should be serviced by Dublin. The only factor presented by the majority to support Suburban’s claim is that it is an older and larger company. This alone does not establish, however, that Suburban can better serve the public in the area in question. Moreover, we should not, in my opinion, ignore the origin of the dispute between these companies. Dublin’s creation, at its organizer’s substantial risk and expense, was necessitated by Suburban’s initial unwillingness to furnish service in sparsely inhabited areas far from its then existing facilities. Now that Dublin’s initiative has brought public water service to the point of economic feasibility in central Upper Dublin Township, Suburban has expressed a belated willingness to serve. The Commission, under these circumstances, properly declined to permit Suburban to capitalize on its rival’s efforts in a way which would substantially limit Dublin’s further territorial growth in Upper Dublin Township.

If the Commission has erred in failing to make a determination as to public interest, however, we should not compound that error by making such a determination ourselves on the basis of an incomplete and inconclusive record. Since the majority concludes that a finding by the Commission on the question of public interest is an absolute requirement, I would then adopt Suburban’s suggestion that, “All of the foregoing circumstances would suggest that the case should be remanded to the Commission for proper disposition of *102the issues in the light of established law and the evidence of the record.”