Akron v. Pennsylvania Public Utility Commission

Dissenting Opinion by

Judge Manderino :

I dissent from the majority’s decision to grant a permanent injunction against the Public Utility Commission (P.U.C.) because nowhere in the record before us has it been established that the granting of the injunction is necessary to avoid irreparable harm and *637also because tbe P.U.C. does have subject matter jurisdiction.

It is obvious that no irreparable harm can result because there is an adequate remedy before the P.U.C. to test the questions which have been raised by the plaintiff. If the P.U.C. incorrectly answers the questions raised by the plaintiff, the P.U.C. will then be subject to judicial review. The long established judicial doctrine that a court will not issue a permanent injunction if there is clearly some other remedy which can be pursued without any irreparable harm should be followed unless the Legislature has said otherwise.

The Borough of Akron questions whether the P.U.C. can order Akron to provide water services to certain customers outside of the Borough of Akron which are not now being served by Akron. The P.U.C. has not yet decided whether Akron should be ordered to provide the service. The P.U.C. was about to consider this question under its administrative procedures when Akron filed a complaint in equity asking that the P.U.C. be stopped from considering the question because it had no right to do so under the law. If Akron had not asked for injunctive equitable relief, the P.U.C. would have arrived at a final answer. The P.U.C.’s answer may or may not have been satisfactory to Akron. In either case, the P.U.C.’s order would have been appealable to the courts. If the courts would then decide that the P.U.C. should not have even considered the questions, (no subject matter jurisdiction) the P.U.C. would be reversed. There is no reason why a court of equity should interfere with the normal procedure of awaiting a final decision by the P.U.C. which would then be subject to appellate review in the courts. Such interference, by a court of equity, with normal administrative proceedings is unheard of unless the plaintiff, who is asking the court of equity to interfere, can show why an injustice would occur if the interference does *638not take place immediately. The majority decision violates this time-honored basic principle and stops another administrative proceeding without a single shred of evidence in the record that Akron would suffer any irreparable harm if this court failed to interfere and refused to issue an injunction stopping the proceedings before the P.U.C. In fact, from the evidence in the record, it can be stated unequivocally that there could not possibly be any irreparable harm to Akron while it pursues its adequate remedy at law. A potential water customer located outside the Borough of Akron wants the P.U.C. to order Akron to provide water service to him. Until the P.U.C. orders Akron to do so, and Akron’s rights to appellate review have been exhausted, Akron may not be required to do anything. Until then, it does not have to expend any monies or construct any facilities. All Akron must do, if this court were to refuse the permanent injunction which stops the proceedings before the P.U.C. is to defend its position before the P.U.C. by challenging the P.U.C.’s right to order Akron to provide the service in question.

Akron, of course, had every right to file a complaint before this court as an equity court ashing for an injunction. As pointed out by the majority opinion, this court has subject matter jurisdiction over such a complaint under the Public Utility Law (Act of May 28, 1937, P. L. 1053, art. XI, §1111; 66 P.S. 1441). While that section does give this court subject matter jurisdiction, it does not say anything about changing the time-honored rules for granting an injunction. It does not give this court statutory authority to grant injunctions without the normal prerequisites which a court of equity demands before stopping a legal proceeding already in progress.

Section 1111 of the Public Utility Law (66 P.S. 1441) does not say anything about changing the equitable principles which should be followed before grant*639ing an injunction. That section was obviously intended to limit (not expand) the court’s power insofar as issuing injunctions is concerned. That section takes away from this court the right to issue an injunction even if the traditional equitable principles are present, unless the jurisdiction of the P.U.C. is being questioned. The section does not state that if the jurisdiction of the P.U.C. is being questioned nothing further is needed or has to be established in order to grant a permanent injunction. The clear wording of Section 1111 makes it obvious that it was not intended to suspend the traditional requirements for granting injunctive relief.

Section 1111 of the Public Utility Law reads as follows: “No injunction shall issue modifying, suspending, staying, or annulling any order of the Commission, or of a Commissioner, except in a proceeding questioning the jurisdiction of the Commission and then only after cause shown upon a hearing(Emphasis added.)

While Section 1111 takes away from this court the tight to issue any injunction except when a question of jurisdiction is involved, it goes further to state that, even when a question of jurisdiction is involved, there must be “. . . cause shown upon a hearing.”

This court grants the injunction pursuant to a motion for judgment on the pleadings. The pleadings do not state any facts which even remotely indicate that a “cause” has been shown — cause meaning, as it always has in a request for injunctive relief, that irreparable harm will follow if the complainant is required to pursue some legal remedy. That is not the situation before us.

The complaint in this case was previously examined by the Supreme Court. Pennsylvania Public Utility Commission v. Borough of Akron, 441 Pa. 9, 270 A. 2d 393 (1970). The only thing the Supreme Court decided was that this court had subject matter jurisdiction be*640cause a substantial question as to the P.U.C.’s jurisdiction had been raised. The Supreme Court stated that “. . . all we are required to determine at this stage and all we do decide is that because a substantial question as to the P.U.C.’s jurisdiction has been raised equity has jurisdiction over the cause of action raised by the Borough’s complaint under Section 1111. . . .” 441 Pa. 9, 270 A. 2d at 396.

Deciding that this court has subject matter jurisdiction is not the same as deciding that this court should grant the relief requested in the complaint. In fact, the Supreme Court in its decision stated “. . . we are not deciding whether a final decree prohibiting the Commission from proceeding would be affirmed. . . .” 441 Pa. 9, 270 A. 2d at 395.

Even assuming the validity of the majority’s conclusion that the P.U.C. did not have subject matter jurisdiction to order Akron to extend its service, there is time enough, after a P.U.C. order, for Akron to file its proper appeals under normal legal procedures.

I would therefore refuse the injunctive relief requested and allow the P.U.C. to conduct its hearing and proceed to a final order which has never been issued.

Since the majority has given its views on the merits of the P.U.C.’s authority, I must comment that I dissent also from the majority’s holding that the P.U.C. does not have the authority to order Akron to extend service to new customers if such extension is found to be reasonable.

I agree with the majority that a municipal corporation operating within its municipal boundaries does not come under the jurisdiction of the P.U.C. so far as its service is concerned. I also agree with the majority that if a municipal corporation extends service beyond its municipal boundaries, the P.U.C. then has jurisdiction to determine the extent of the service that should be provided.

*641My disagreement with the majority is in its conclusion that a municipal corporation has the right under the law to file an application for a “certificated service area” and that if such an area is approved by the P.U.C., the P.U.C. can never unilaterally change such “certificated service area.”

I find nothing in the Public Utility Law which spells out the concept of “certificated service area” when a municipal corporation extends its service beyond its municipal boundaries. Section 202 of the Public Utility Law (66 P.S. 1122) which the majority quotes, states that upon application of a public utility and the approval by the P.U.C., the public utility can receive permission to extend its service “beyond its corporate limits”. There is no authority in the Section quoted for either the municipality or for the P.U.C. to establish a “certificated service area” which will be binding for all times. The concept of a “certificated service area” is created by the majority opinion not by the Legislature.

The law simply states that the public utility must obtain a certificate of public convenience before it goes “beyond its corporate limits”. The P.U.C. under Section 902 (66 P.S. 1342) is given authority to modify its orders at any time. It is given broad control over the municipal corporation in the public interest. The P.U.C. issues “certificates of public conveniencenot “certificates for the convenience of public utilities.”

If, as the majority holds, a municipal corporation and the P.U.C. can mutually agree at a given point in time to establish a “certificated service area” which can never be changed regardless of the public interest, we are ignoring completely the whole purpose of the Public Utility Commission Act and its overriding purpose to protect the public interest. We are not dealing here with a private company. We are dealing with a municipal corporation which is subject, in the public *642interest, to the overriding scrutiny of the P.U.C. The majority points out that if the P.U.C. had this authority, it would become the Board of Directors of the municipal corporation. The P.U.C. would not become the Board of Directors of the municipal corporation, but the P.U.C. does share with the Board of Directors the control of its operation because of the public interest. There is no question that the P.U.C. can, in much of its jurisdiction, affect the financial standing of a public utility. The P.U.C. has authority to control rates, refunds, extensions of service and other items. For instance, a utility does not have the right to suspend service even in an area where it may be losing money without the P.U.C.’s permission. This could certainly affect a utility’s financial standing. There are many orders of the P.U.C. which affect the finances of a public utility — this has never been reason for denying the P.U.C. its statutory authority.

Of course, as the Supreme Court stated in Altoona v. Pennsylvania Public Utility Commission 168 Pa. Super. 246, 77 A. 2d 740 (1951), the P.U.C. must be guided by reasonable principles. The P.U.C. cannot arbitrarily order, even in this case, a municipal corporation to enlarge a service order which is entirely different from the area which is currently being serviced.

The danger of the majority holding can be seen when we look at a case such as the one presently before us. Akron is servicing a certain area in an adjoining municipality. Let us suppose that one additional dwelling were constructed within three feet of the so-called service area presently existing and that one individual potential customer asks to be serviced and is refused. Can we say that we are serving the purpose of the Public Utility Law and the purpose of the P.U.C. by denying to the P.U.C. the right to order utility service to be given to that one single dwelling? The majority seems to feel that to give the P.U.C. the authority *643to do this would be to give the P.U.C. authority to make a much broader order and mandate that the municipal corporation extend its service not to just one customer, but perhaps to ten thousand. This is entirely a matter of reasonableness, as was stated by the Supreme Court in Altoona, supra.

I agree that the P.U.C. cannot order a municipal corporation to give service to customers outside the area which it is currently servicing. The real question is who determines the logical area being serviced. The majority seems to feel that this area has already been defined by the concept of a “certificated service area”. Such a concept is not found in the Public Utility Law. Simply because, in 1958, the P.U.C. issued an order giving permission to Akron to extend its service in a specifically delineated area, does not mean that the P.U.C. even had the authority to specifically delineate the area with absolute finality for all time. Nor does it mean that the door is open for the P.U.C. to undelineate the area and broaden its scope in any arbitrary manner. All we are saying here is that the actions of the P.U.C. twelve years ago cannot interfere with the public interest today. Nor can the action of the P.U.C. today interfere with the interest of the municipal corporation in any unreasonable way.

The request for injunctive relief by Akron should be denied and judgment entered for the Public Utility Commission.