PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held June 2, 2000
Commissioners Present:
John M. Quain, Chairman
Robert K. Bloom, Vice-Chairman
Nora Mead Brownell
Aaron Wilson, Jr.
Terrence J. Fitzpatrick
Petition of Bernville Borough for a Declaratory Order Docket No.
That its Service to a Single Customer Beyond the P-00001801
Borough’s Municipal Limits Constitutes Service to
an Individual and Not to the Public Within the Meaning
of Sections 1501 and 1102(A)(5) of the Public Utility
Code.
ORDER
BY THE COMMISSION:
On March 6, 2000, the Borough of Bernville (the Borough or Bernville) filed a
Petition for a Declaratory Order seeking a determination that its provision of
extraterritorial wastewater service to the Tulpehocken School District (the School
District) constitutes service to an individual and not to the public within the meaning of
Sections 1102(a)(5) and 1501 of the Pennsylvania Public Utility Code. In accordance
with 52 Pa. Code § 5.42, the Borough served a copy of its petition on the Office of
Consumer Advocate (OCA), the Office of Trial Staff, and the Office of Small Business
Advocate. No answers to Bernville’s petition were received.
The Borough seeks a Commission ruling that will remove uncertainty regarding
whether the Borough’s provision of wastewater service to the School District would
constitute service to and for the public so as to render it subject to Commission
jurisdiction. Section 331(f) of the Public Utility Code, 66 Pa. C.S. § 331(f), provides that
the Commission “may issue a declaratory order to terminate a controversy or remove
uncertainty.” Under the circumstances, we determine it appropriate to issue a declaration
as requested.
In support of its Petition, the Borough states that it currently maintains and
operates a wastewater system exclusively within its municipal boundaries. Sometime in
January of this year, the School District requested that the Borough provide service to the
Penn Bernville Elementary School, which is located in Penn Township, across the street
from the Bernville municipal boundary. The Penn Bernville Elementary School is
presently serviced by an on-site system and is currently undergoing extensive
renovations. Under the proposal before us, the cost of connecting the Penn Bernville
Elementary School to the Borough’s wastewater service would be wholly absorbed by the
School District. In its Petition, the Borough said it will charge the Tulpehocken School
District the same rate for sanitary sewer service as it presently charges Borough residents
who are connected to the sanitary sewer system.
The test to determine whether a party is rendering utility service to the public is set
forth in Borough of Ambridge v. Pa. Public Service Commision, 165 A. 47 (Pa. Super.
1933). In Ambridge, the Superior Court stated that the public or private character of an
enterprise does not depend upon the number of persons by whom it is used, but upon
whether it is available to all members of the public who may require it, to the extent of its
capacity; and the fact that only a limited number of persons who may have occasion to
use it does not make it a private undertaking if the public generally has a right to such
use. Later, the Pennsylvania Supreme Court clarified that service is “private” in nature
and outside the Commission’s jurisdiction if an entity’s customers constitute a defined,
privileged, and limited group. Drexelbrook Associates v. Pa. Public Utility Commission,
418 Pa. 430, 212 A.2d 237 (1965).
In applying the Ambridge and Drexelbrook tests to the facts presented, it appears
that the proposed service will not be subject to Public Utility Commission jurisdiction.
The service will not be available for use by the general public. Bernville clearly proposes
only to provide service to Penn Bernville Elementary School, a single customer located
across the street from Bernville’s municipal boundary. Moreover, the request for service
by the School District was made as a consequence of unique logistical and practical
circumstances, and the Borough is not holding itself out as providing or ready to provide
service to any other customer outside the municipal boundaries. Based upon the facts
before us, this proposed service does not fall within the Commission’s regulatory
jurisdiction; THERFORE:
IT IS ORDERED:
1. That the Petition for Declaratory Order filed by the Borough of Bernville at
this docket is hereby granted.
2. That the proposed provision of wastewater service by the Borough of
Bernville to the Tulpehocken School District’s Penn Bernville Elementary School, where
the Borough provides such service only to the School District for use by the Penn
Bernville Elementary School, does not constitute service “to or for the public” within the
intendment of the Public Utility Code and is not subject to the jurisdiction of the
Pennsylvania Public Utility Commission.
BY THE COMMISSION
James J. McNulty, Secretary
(SEAL)
ORDER ADOPTED: June 2, 2000
ORDER ENTERED: