34 Pa. Commw. 50 | Pa. Commw. Ct. | 1978
Opinion by
This passionately contested electric utility rate case began on October 1, 1976 when Duquesne Light Company filed with the Pennsylvania Public Utility Commission (PUC) its Supplement No. 2 to Tariff Electric Pa. P.U.C. No. 14, proposing an annual revenue increase of $127,897,362, issued to become effective November 30, 1976. On the same day Duquesne filed a “Petition for Emergency Rate Relief” requesting, that $87,273,696 of its requested revenue increase be allowed to become effective on November 30, 1976 or as soon thereafter as possible.
On December 17, 1976 the PUC entered an order which it had adopted without hearing on December
Duquesne’s proposed Tariff Supplement No. 2 was immediately opposed by, among others, Mark Widoff the Consumer Advocate, the City of Pittsburgh and 25 Private Complainants — the three parties to the instant proceedings in addition to Duquesne. No petitions to review PUC’s Order of December 9, 1976 that Duquesne might file a tariff for $60,000,000 increase in annual revenues, were filed. However, some complainants filed applications with the PUC to revoke the order of December 9, 1976.
On December 16, 1976 the PUC assigned the tariff application and associated formal complaints to an Administrative Law Judge who was charged to hold a prehearing conference, to hear Duquesne’s proofs in support of its petition for emergency relief and to report his findings, conclusions and opinions no later than February 15, 1977. On March 22, 1977 the Administrative Law Judge reported that in his opinion Duquesne had established its need for the $60,000,000 annual increase in revenues.
By order adopted June 28, 1977, entered July 6, 1977 (hereinafter referred to as the June 28, 1977 or
Duquesne filed a petition for review of the PUC’s order of June 28, 1977,
Duquesne’s petition for review galvanized Mark Widoff the Consumer Advocate, the City of Pittsburgh and 25 Private Complainants to file so-called cross-petitions for review of both the order of December 9, 1976 and of the order of June 28, 1977.
The PUC filed a motion to quash these cross-petitions, insofar as they attack the order of December 9,1976 because the cross-petitions were not filed within 30 days of the entry of the order and insofar as they attack the June 28, 1977 order because that order was interlocutory and therefore not appealable.
Duquesne moved to quash the cross-petitions attacking the December 9, 1976 order on the grounds of
We have concluded that both PUC orders were interlocutory, not final, and that Duquesne’s petition for review and the cross-petitions for review filed by Mark Widoff the Consumer Advocate, the City of Pittsburgh and the 25 Private Complainants must all be quashed.
By Section 403 of the Appellate Court Jurisdiction Act of 1970,
This rate case is still being litigated on its merits before the PUC; no final order with respect to Duquesne’s claim for annual revenues of $127,897,362 has been made; and in making that final order the PUC will, as its order of June 28, 1977 expressly declares, consider the fact that from December 14, 1976 until July 9, 1977, Duquesne received increased revenues at an annual rate of $60,000,000, pursuant to the December 9, 1976 order, and that since July 9, 1977, Duquesne has received increased revenues at an annual rate of $12,000,000 pursuant to the order of June 28, 1977. Hence, the cross-petitioners are not precluded from seeking redress with respect to the December 9,
That the December 9, 1976 order, regardless of the basis in law for its issuance, was not intended to finally fix Duquesne’s right to a rate allowance pending the investigation is plain on its face. The $60,000,000 rate allowance was to exist only “pending . . . inquiry and investigation” and was declared to “be subject to [an] inquiry and investigation.” That it was not a final order is further demonstrated by the fact that by its order of June 28, 1977, the PUC, contrary to the Administrative Law Judge’s recommendation, reduced Duquesne’s allowance to $12,000,000 on an annual basis.
The cross-petitioners, not having appealed from the December 9, 1976 order, concede that it was interlocutory when made but contend that it became a final order as to Duquesne’s customers when the PUC failed to order refunds in its order' of June 28, 1977. This argument is wholly without merit. We fail to see how the failure to order refunds of rates collected with PUC approval during the litigation of a rate case, precludes the complainants from asserting that refunds should be directed to be made in the PUC’s final order. And of course it does not. See Section 313(a) of the Public Utility Law, 66 P.S. §1153(a).
Duquesne contends that if, as we concluded when asked to stay the order, and still hold, the June 28, 1977 order was a temporary rate, it is appealable under the authority of P.U.C. v. Laurel Pipeline Company, 23 Pa. Commonwealth Ct. 559, 353 A.2d 84 (1976). In that case the utility specified as error by the PUC in establishing a temporary rate that it was not given notice and an opportunity to be heard and
And Now, this 23rd day of February, 1978,' it is Ordered that Duquesne Light Company’s petition for review at No. 1346 C.D. 1977, Mark Widoff the Consumer Advocate’s cross-petition for review at No. 1457 C.D. 1977, the City of Pittsburgh’s cross-petition for review at No. 1472 C.D. 1977, and 25 Private Complainant’s cross-petition for review at No. 1485 C.D. 1977, be and they all are quashed.
It is noted that Duquesne did not, in accordance with the practice which had lately developed and which was approved in P.U.C. v. Commonwealth, 23 Pa. Commonwealth Ct. 566, 353 A.2d 887 (1976), file multiple tariffs, some of which the PUC might allow to become effective, while suspending and investigating others. Its “Petition for Emergency Rate Relief” seems to anticipate the effective date, October 7, 1977, of an amendment to Section 308 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. §1148, made by the Act of October 7, 1976, P.L. 1057, authorizing petitions for extraordinary rate relief of portions of the total rate relief requested.
Duquesne also requested a stay of the order of June 28, 1977, which we refused. We concluded that the June 28, 1977 order was one fixing temporary rates pursuant to Section 310, 66 P.S. §1150, of the Public Utility Law and that we were forbidden by Section 1111, 66 P.S. §1441, from staying an order of the PUO where jurisdiction was not in question. Our orders in the earlier proceedings are reported at Duquesne Light Company v. P.U.C., 31 Pa. Commonwealth Ct. 118, 375 A.2d 399 (1977), and Duquesne Light Company v. P.U.C., 31 Pa. Commonwealth Ct. 118, 123, 376 A.2d 668 (1977).
Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §211.403.