Hunnell v. Pa. Pub. Util. Comm'n

Charles Evans Hunnell, Petitioner v. Pennsylvania Public Utility Commission, Respondent

No. 2564 C.D. 2010

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: April 29, 2011

June 15, 2011

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BUTLER

Charles Evans Hunnell (Hunnell) appeals the November 4, 2010 order of the Pennsylvania Public Utility Commission (Commission) denying Hunnell's exceptions, adopting the initial decision of the Administrative Law Judge (ALJ), granting the application of West Penn Power Company (West Penn) to locate, construct, operate, and maintain certain high voltage electric transmission line facilities, granting the application of West Penn to exercise eminent domain to construct and install the proposed aerial electric transmission line facilities along the proposed route in Pennsylvania, and dismissing Hunnell's protest. Hunnell raises three issues for this Court's review: (1) whether the Commission's order approving West Penn's application and granting eminent domain power was supported by substantial evidence, (2) whether the Commission erred as a matter of law in approving the application and granting eminent domain power, and (3) whether Hunnell's constitutional rights were violated in granting West Penn's eminent domain petition. For the following reasons, we affirm the Commission's order.

On January 26, 2009, West Penn filed an application with the Commission requesting authority to locate, construct, operate and maintain a 138,000 volt (138kV) electrical transmission line of approximately 2.2 miles in length within a 100-foot wide right-of-way easterly from its proposed Pursley substation in portions of Center and Franklin Townships in Greene County, Pennsylvania (the Pursley Line). West Penn's application stated:

The Pursley Line and related facilities will provide needed electric service enhancements for the expansion of the Cumberland Mine, owned by Foundation Coal Holdings, Inc. [Foundation], and will also serve as an initial step to facilitate the future growth of West Penn's transmission and subtransmission networks in response to current and future expansion of West Penn customer requirements in this portion of Greene County.

Reproduced Record (R.R.) at 1a. The estimated cost of the project was just over $10 million. There were ten owners whose property was located within 500 feet of the centerline of the proposed Pursley Line, one of whom was Hunnell. West Penn requested that the Commission grant it eminent domain authority in connection with the proposed Pursley Line.

Hunnell filed a timely protest to West Penn's application on March 20, 2009. Cumberland Coal Resources, L.P. (Cumberland) and Greene County Planning Commission filed petitions to intervene, which were granted by the Commission March 31, 2009. West Penn and Cumberland denied the allegations in Hunnell's protest. A hearing was held before the Commission's ALJs on August 4, 2009. On September 21, 2009, Hunnell filed a motion to dismiss West Penn's application.

On January 6, 2010, the ALJs' initial decision granted West Penn's application, and granted West Penn the authority to exercise eminent domain to construct and install its proposed transmission facilities. Following exceptions and replies to exceptions, on May 26, 2010, the Commission remanded the matter to the ALJs for expedited proceedings relative to the allocations of costs, use of the existing right-of-way for the lines, and a site visit. On July 21, 2010, following a site visit, the remand hearing was held. On October 15, 2010, the Commission issued the ALJs' initial decision on remand relative to those limited issues.

On November 4, 2010, the Commission entered an opinion and order granting West Penn's application, and granting West Penn the authority to exercise eminent domain to construct and install its proposed transmission facilities along the proposed route of the Pursley Line. Hunnell appealed to this Court on December 2, 2010. West Penn and Cumberland intervened. On or about December 23, 2010, the Court of Common Pleas of Greene County granted West Penn eminent domain over Hunnell's property.

On January 4, 2011, Hunnell filed a motion for stay of the Commission's order, to which West Penn and Cumberland responded. On February 10, 2011, the Commission denied Hunnell's motion for stay on the basis that it was untimely, and that it failed to satisfy the standards for grant of a stay as established in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983).¹ According to Hunnell, West Penn entered his property and began construction of the Pursley Line on or about March 7, 2011. According to Cumberland, Hunnell sought a stay of the Court of Common Pleas' possession order, which was denied on March 11, 2011.

On March 28, 2011, Hunnell filed an unverified application for stay, pending action on his petition for review. The Commission, West Penn and Cumberland filed answers to Hunnell's application. On April 20, 2011, this Court denied Hunnell's application for a stay. Hunnell's petition for review of the Commission's November 4, 2010 order is currently before this Court.²

Hunnell first argues that the Commission's order approving West Penn's application and granting eminent domain power was not supported by substantial evidence. Specifically, Hunnell contends there is not substantial evidence to support a determination that there is a need for the proposed line or that there is a present and future necessity of the line in furnishing service to the public. We disagree.

"Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Phila. Gas Works v. Pennsylvania Pub. Util. Comm'n, 898 A.2d 671, 675 n.9 (Pa. Cmwlth. 2006).

J. Craig Fraley (Fraley), a Senior Engineer in Transmission Planning for Allegheny Energy Service Corporation, stated, in a prepared statement, which was subsequently adopted at the hearing before the Commission on August 4, 2009, that the expansion of the Cumberland Mine will necessitate the building of the Pursley substation which has a proposed power of 2 MVA for 2009. However, that will increase to 19 MVA by 2010, 23 MVA by 2013 and 30 MVA by 2020. "The Pursley Line . . . will provide the needed electric transmission service enhancement to Foundation, and also will serve as an initial step to improve electric transmission service reliability to current and prospective customers in the surrounding area." R.R. at 43a. Fraley further stated in a prepared rebuttal statement, subsequently adopted at the remand hearing before the Commission on July 21, 2010:

Although the most urgent need for the proposed Pursley Line is to provide electric service to Foundation's Cumberland Mine the proposed line also facilitates:

• [West Penn's] obligation to extend electric service to customers requesting service in the Holbrook area, and

• Construction of a 138-25 kv and 138-12 kv substation in the Rutan area.

R.R. at 499a. Clearly, this is such relevant evidence that a reasonable mind might accept as adequate to support the Commission's conclusion that there is a need for the proposed line or that there is a present and future necessity of the line in furnishing service to the public.

Hunnell next argues that the Commission erred as a matter of law in approving the application, and granting eminent domain power. Specifically, Hunnell contends the Commission did not consider the availability of reasonable alternative routes as required by 52 Pa. Code § 57.75(e)(4). Hunnell contends West Penn already has a right-of-way from the same point A to the same point B as the line proposed in the application, and that said right-of-way should have been considered as an available alternative. We disagree.

Hunnell refers to the cross-examination testimony at the remand hearing of Michael Horn (Horn), a Lines Engineer for Allegheny Power in the Transmission Department, to support this contention. However, Horn's "admissions" do not support Hunnell's conclusions. Horn testified in his rebuttal statement which was subsequently adopted at the remand hearing before the Commission that:

Mr. Hunnell's analysis of the cost of right-of-way clearing and right-of-way maintenance in open fields compared to forested areas would only be valid if he were comparing these costs for line route alternatives of equal length. In the case of West

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