Tuesday, November 5, 2013

Prior Approval Needed Before Condemning Lands

Frank Kosir, Jr.
In Re: Condemnation By PPL Electric Utilities Corporation of Real Estate Situate in Schuylkill County, Pennsylvania, Being The Property of WMPI Land Corp.; Appeal of: WMPI Land Corp., 2013 Pa. Commw. LEXIS 134 (2013)

This matter addressed the issue of whether a public utility company was required to obtain the approval of the Pennsylvania Public Utility Commission prior to condemning lands on which it operated an existing electrical transmission system.  WMPI Land Corp. (“WMPI”) is the owner of a parcel of real property (“Property”) situated in the Borough of Gilberton, Schuylkill County, Pennsylvania.  Currently erected on the Property is an electric distribution system consisting of poles and an overhead power line previously installed by PPL Electric Utilities Corporation (“PPL”) under an expired right-of-way agreement (“Agreement”) entered into with WMPI's predecessor in title.

On January 24, 2011, PPL filed a Declaration of Taking (“Declaration”) condemning a perpetual easement and right-of-way across the Property to, inter alia, construct, operate and maintain the existing electrical transmission system.  In response, WMPI filed Preliminary Objections asserting, inter alia, that PPL had failed to satisfy the requirements of Section 1511(c) of the Association's Code (15 Pa.C.S. § 1511(c)), which requires a public utility to obtain the approval of the Pennsylvania Public Utility Commission prior to condemning lands for the construction or erection of any utility system.  The trial court, holding that the purpose of the taking was to operate and maintain the existing transmission system and not to construct or erect new lines, concluded that PPL had complied with the Association's Code, and overruled the Preliminary Objections.

On appeal, our Commonwealth Court reversed.  In issuing its ruling, the court noted that Section 1511(c) of the Association's Code governs condemnations for the running of wires or the erecting of poles or other aerial electric facilities only after the PUC has concluded that the proposed facilities are necessary and proper.  In this instance, although the stated purpose of the condemnation was to maintain the existing transmission system, the Declaration also permitted PPL to operate and construct “poles, towers, guys, cables, wires, fiber optics, fixtures and apparatus above and below the ground.”  Therefore, as the language of the Declaration was broad in nature, and did not limit PPL’s rights to the maintenance of the existing transmission system, PPL was required to obtain the PUC’s approval prior to filing a declaration of taking. 

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