CTY. OF DAUPHIN v. PA. PUBLIC UTIL. COM'N
159 Pa.Commw. 649 (1993)
634 A.2d 281
COUNTY OF DAUPHIN, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
Commonwealth Court of Pennsylvania.
Decided November 15, 1993.
Jeffrey L. Troutman, Asst. Sol., for petitioner.
John Herzog, Asst. Counsel, for respondent.
Lillian S. Harris, for intervenor, Diamond "S" Cab Co.
Lloyd Persun, for intervenor, Harrisburg Taxi Cab Co.
Before PALLADINO and KELLEY, JJ., and LORD, Senior Judge.
On January 27, 1988, George Stouffer and Robert Sellers filed applications with the Pennsylvania Public Utility Commission (PUC) on behalf of their partnership, the Diamond "S" Cab Company (Diamond), for emergency temporary authority, temporary authority, and permanent authority to transport persons between points in Dauphin County and from points in Dauphin County to points within five miles of the Dauphin County line. Diamond made these applications in connection with services it provides as a subcontractor of the
The services at issue are shared-ride transportation services provided to senior citizens by the department. Funding for these services is provided pursuant to a state block grant medical assistance program administered by the state Department of Public Welfare and a lottery-funded program administered by the Pennsylvania Department of Transportation (DOT). With one exception, the persons who use these services are residents of Dauphin County.
After Diamond had filed its applications, the department received a memorandum from DOT stating that DOT had changed its policy such that a county receiving funds under the lottery-funded program which maintained substantial control of the service provided could subcontract with transit operators who did not have a PUC certificate. Previously, DOT had required the subcontractors to have a PUC certificate. According to Diamond's brief, the applications were originally filed because of the prior policy.
Subsequent to this policy change, Diamond amended its application to specify that it wished to transport persons as a subcontractor of the Dauphin County Transportation Department. Diamond concurrently filed a motion to dismiss its application asserting that the PUC lacked jurisdiction over the proposed subcontracting service.
After considering the application, an administrative law judge (ALJ) concluded that the PUC lacked jurisdiction over the proposed service and dismissed the application. The PUC adopted this decision by order entered October 27, 1989. Yellow Cab appealed this decision to this court and, in an
Following a hearing upon remand, the ALJ again issued a decision dismissing the application due to a lack of jurisdiction. The PUC entered an order on June 10, 1992, which adopted in part and overruled in part the ALJ's decision. The PUC order made the County of Dauphin a party to this proceeding and determined that services rendered by the county and Diamond which exceed the geographical boundaries of Dauphin County are subject to PUC jurisdiction. The county has appealed this determination and Diamond has intervened.
The county argues that (1) the services are not extraterritorial within the meaning of the Public Utility Code (Code),
In making our prior decision, this court cited section 1102(a)(5) of the Public Utility Code (Code), 66 Pa.C.S. § 1102(a)(5), which requires a certificate of public convenience for "any municipal corporation to acquire . . . or begin to operate, any plant, equipment, or other facilities for the rendering or furnishing to the public of any public utility service beyond its corporate limits. . . ." The court also cited section 1501 of the Code, 66 Pa.C.S. § 1501, which provides that "[a]ny public utility service being furnished or rendered by a municipal corporation beyond its corporate limits shall be subject to regulation and control by the commission as to service and extensions, with the same force and in like manner as if such service were rendered by a public utility."
The county argues that the services in question are not extraterritorial within the meaning of the Code because all of the users are Dauphin County residents. The county states that the reason for regulating extraterritorial service is so that the municipality cannot discriminate against users who are
The county first cites a Superior Court case, State College Borough Authority v. Pennsylvania Public Utility Commission, 152 Pa.Super. 363, 31 A.2d 557 (1943), in which the court engaged in the following discussion concerning the predecessor to the Code which contained language similar to the language cited above:
Id. at 374, 31 A.2d at 562 (citations omitted). Thus, the purpose of subjecting a municipally operated public utility which renders service beyond its corporate limits to the jurisdiction of the PUC is to protect users of the service who are not residents of the municipality. This rationale does not apply to the present case where the users of the service are residents of Dauphin County. Although it did not say so explicitly, the court in State College implicitly defined the phrase "rendered service beyond its corporate limits" as referring to the offering and sale of such service to users who are not residents of the municipality.
In Borough of Ridgway v. Pennsylvania Public Utility Commission, 83 Pa.Commw. 379, 480 A.2d 1253
Id. at 387, 480 A.2d at 1257. The court went on to conclude that the borough was subject to the PUC's jurisdiction and was required to obtain a certificate of public convenience because the borough provided sewer service to customers in the neighboring township. It is instructive that the court, while noting that the borough's sewage disposal plant was located in the neighboring township, did not cite this fact as being relevant to the question of jurisdiction. It was not the fact that some of the utility's activities occurred in the neighboring township which conferred PUC jurisdiction. Instead it was the fact that the utility sold its services to residents of the neighboring township which conferred jurisdiction.
In the present case, there is no evidence that the county holds itself out as a supplier of transportation services to the public beyond its boundaries.
NOW, this 15th day of November 1993, the order of the Pennsylvania Public Utility Commission, dated October 16, 1992, at No. A-00106732, F003, is reversed.
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