Commonwealth Court Clarifies Pennsylvania Utilities' Authority to Condemn Property for Operating and Maintaining Exiting Electric Distribution Facilities

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Pennsylvania’s Commonwealth Court recently clarified the power of public utilities to condemn property for operation and maintenance of existing facilities, holding that before exercising eminent domain to operate and maintain existing electric distribution facilities, the utility must first seek approval from the Pennsylvania Public Utility Commission ("Commission"). In In Re: Condemnation by PPL Electric Utilities Corporation, a panel of the Pennsylvania Commonwealth Court recently reversed an order of a lower court dismissing a preliminary objection to a declaration of taking filed by an electric utility for purposes of operating and maintaining previously installed electric distribution lines.

Public utilities were among the earliest business corporations chartered in Pennsylvania. These corporations were organized and chartered pursuant to special acts passed by the Pennsylvania General Assembly in the 18th and 19th century. The General Assembly recognized that special powers were required to enable public utilities to provide service. These special powers included authorization for utilities to install facilities where necessary to provide service. The placement of the facilities could require a taking or a condemnation of private property, requiring payment of compensation to owners, or in some circumstances, to authorize the placement of utility facilities in a right-of-way or in a public street or highway. In the 19th century a number of general corporation statutes were enacted dealing with different kinds of public utilities. Many of the public utility charters adopted pursuant to these acts included the power of eminent domain and the right to occupy public highways and streets.

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