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| Frank Kosir, Jr. fk@muslaw.com |
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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