68 A.2d 448 | Pa. Super. Ct. | 1949
Argued April 20, 1949. This is a rate case. These appeals are from the order of the Pennsylvania Public Utility Commission of February 1, 1949. Appellant, a passenger bus transportation utility, operating about forty-six buses in the Norristown, Conshohocken, Phoenixville area, sought an increase in rates by tariff filed with the Commission on April 27, 1948. The tariffs, to become effective May 30, 1948, provided, in general, that the former rate of 7 1/2 cent token (2 for 15 cents) or 8 cent cash fare be increased in the Norristown-Conshohocken areas to 8 1/3 cent token (3 for 25 cents) or 10 cent cash fare. Following a complaint as to the reasonableness of the proposed rates by the Montgomery-Chester Counties Industrial Union Council and District No. 7 United Steelworkers *396 of America, the Commission, on May 24, 1948, instituted an investigation on its own motion to determine the reasonableness of the rates. The Commission's investigation included consideration of temporary rates. Acting under section 308 (b) of the Public Utility Law of May 28, 1937, P. L. 1053, 66 P. S. § 1148, the Commission also suspended operation of the proposed rates until February 28, 1949. Extensive hearings were held. By the final order of February 1, 1949, the Commission denied temporary rates and refused to permit appellant to raise its rates except to the extent of increasing the 7 1/2 cent token fare (2 for 15 cents) to 8 cent straight cash fare, effective February 13, 1949.
The Commission found a depreciated original cost, including amounts for materials, supplies and cash working capital totaling $40,570, of $357,538, and a depreciated reproduction cost of $441,122. After considering the elements of value — and recognizing that the utility was a going concern, but without making any separate allowance for going concern value — the Commission fixed a fair value of appellant's property for rate making purposes at $390,000. Applying a 7 per cent rate of return to a fair value of $390,000 gave an allowable return of $27,300.
Annual revenues under existing fares for the year 1948 were $693,889; and, after allowable operating expenses of $676,423, $17,466 was available towards a fair return or 4.5 per cent on a fair value of $390,000. The Commission's order was designed to produce an annual revenue of $708,092 or an increase in net annual revenue of $14,203. The Commission found that the proposed tariffs would produce a gross operating revenue of $748,989 annually, and result in a net increase in annual revenue of $55,100 to appellant. It concluded that the proposed fares would yield an excessive return, and that they were therefore unjust and unreasonable. Appellant challenges the final order of *397
the Commission fixing rates as confiscatory. The broad scope of review indicated in Solar Electric Co. v. Pennsylvania PublicUtility Commission,
ORIGINAL COST: The finding of the Commission with respect to a depreciated original cost was $316,968.1 Appellant claimed $417,752 for depreciated original cost.2 In arriving at a lower figure the Commission reduced appellant's claim for "Franchises" by $27,612, "Land" by $6,563, and "Revenue Equipment Less Depreciation" by $79,881. We shall consider the deductions in the above order: (a) FRANCHISES: Appellant was incorporated June 2, 1933, as a successor to Schuylkill Valley Traction Company, an electric street railway company which had defaulted in 1932 on its bonds and in rentals to underliers. A bondholder's protective committee acted in bringing about the abandonment of the old street railway company and in forming the new bus company. The Conway Corporation, organized in 1926 for the purpose of rendering "expert supervisory and consulting service to public utilities," was employed to assist in the abandonment of the street railway service and the substitution of motorbus service. Shortly after incorporation in 1933, Conway Corporation entered into a contract with appellant to supervise its operations; that contract is still in effect. Clinton D. Smith, the present vice-president and general manager of appellant, and Russell S. Stoughton, treasurer, are also employed by Conway Corporation, and devote part of their time to each company. Thomas D. Conway, Jr., *398
is chairman of the board of directors of appellant, and also president of the Conway Corporation. Of the $27,612 franchise item in dispute $13,199.52 was paid by the bondholders protective committee in connection with the abandonment of street railway service. On December 28, 1933, Conway Corporation submitted a bill of $14,412.85 for services and agreed with the bondholder's protective committee to accept 2,120 shares of Class B non-par voting common stock of appellant in payment. In disallowing the item of $27,612 for franchises, being the total of $13,199.52 and $14,412.85, the Commission held that appellant had failed to differentiate the cost of abandonment of the old street railway from the cost of organization of the new bus company. However, appellant's original cost depreciated included $31,072 for franchises and the Commission did allow an item of $4,090 for franchises, being the difference between $31,072 and $27,612; part of this $4,090 allowance included some of the original cost of incorporation. The burden of proof rested with appellant and it was obliged to differentiate and establish items of organization expense. Section 312 of the Act of May 28, 1937, P. L. 1053, 66 P. S. § 1152. It does not appear that the appellant fully met that burden. We are not convinced the franchise item of $27,612 should be allowed. (b) LAND: Included in the original cost of $16,736 for land and land rights is a parcel of vacant land sixty by sixty-one feet, purchased in 1947 for $6,563. This land is located in the business district of Norristown, and was purchased as a site for a new office building. Although plans have been drawn for a proposed building, no contracts have been let and the work has been deferred indefinitely due to high building costs. From the time of purchase until the present the land has been used under lease as a parking lot. The Commission, in disallowing this item as a component of original cost, held that it was not property devoted *399
to a public use in any of appellant's operating activities. It is conceivable, as in the cases of Denver Union Stock Yard Co.v. United States,
REPRODUCTION COST: Appellant's depreciated reproduction cost figure for its property was $576,321;3 the finding of the commission on such cost was $392,302.4 In reproduction cost as in original cost, the Commission eliminated substantially the same amounts for "Franchises," "Land" and "Revenue Equipment." What we have said as to the land purchased for a future office site, and the "contract" for the ten new buses applies equally in the determination of reproduction cost. Admittedly, reasonable organization costs were proper subjects for consideration in arriving at a reproduction cost estimate.Solar Electric Co. v. Pennsylvania Public Utility Commission,
supra,
ACCRUED DEPRECIATION: The principal dispute is on accrued depreciation of appellant's revenue equipment. Both in original cost and reproduction cost the Commission applied a straight line age-life formula to determine accrued depreciation. SeePeoples Natural Gas Co. v. Pennsylvania Public UtilityCommission,
CASH WORKING CAPITAL: Appellant claimed one month's operating expenses or $53,000. The Commission allowed $19,400 for this item. The claims deleted by the Commission were $21,900 for cash deposit in bank, $9,900 equalization fund, and $1,800 passenger receipts in transit. In so doing the Commission pointed out that in transportation utilities cash is received by the utility in the form of fares paid by riders before rendering service. Under such circumstances the need for cash working capital is appreciably reduced. Cf. Blue MountainTelephone Telegraph Co. v. Pennsylvania *403 Public Utility Commission, supra,
GOING CONCERN VALUE: Appellant claims $64,430 for going concern value. The Commission made no special allowance for going concern value but considered the fact appellant was a going concern in reaching its final determination of fair value. The burden of proof was upon appellant to show that it was entitled to a special allowance for going concern value.Cheltenham Abington Sewerage Co. v. Public ServiceCommission,
RATE OF RETURN: Appellant claims 8 1/2 per cent on a valuation of $650,000 or $55,250 annually. The Commission allowed 7 per cent on its fair value finding of $390,000. Appellant's claim is based upon the expert opinion testimony of its witness that an 8 1/2 per cent return is necessary to attract capital in the transit industry generally. The Commission considered the testimony of appellant's expert witness, at length, and rejected it largely because it dealt with an entire industry rather than with a particular utility. The Commission was not bound to accept the expert opinion testimony of appellant's witness. The rate of return is necessarily a variable depending on many factors; it should be adequate and may not be confiscatory. Solar Electric Co. v.Pennsylvania Public Utility Commission, supra,
OPERATING REVENUES: Actual operating revenue for the year ending March 31, 1948, was $695,548, which, adjusted for Saturday bank closings, amounted to $693,889. Under the proposed fare increase, on the basis of the previous year's traffic, appellant's revenues would be increased in excess of $81,000 annually. Appellant's witnesses estimated the proposed tariff would produce additional revenue of $48,617 per year, or a total revenue of $742,505. The Commission found that the increase under the proposed fares would be $55,100 annually, and that the total revenue would be $748,989. In arriving at these estimates, the Commission used a 4 per cent over-all decline in volume of traffic due to consumer resistance to price increase, while appellant used 5 per cent for this item. The difference between the Commission's and appellant's estimate in total annual revenue under the increased tariff is not material. Under either estimate, the total annual revenue would yield an excessive return; and the Commission found that appellant was entitled to a total annual revenue of $708,902.
OPERATING EXPENSES: Actual operating expenses for the year ending March 31, 1948, totaled $639,804 exclusive of income taxes, or $662,034 including taxes of $22,230. The Commission found that future operating expenses under present fares would be $676,-423 or, under an allowable revenue of $708,092, allowable operating expenses would be $680,792. Based on appellant's forecast of revenues under the proposed tariff of $742,506 (excluding any claim for the ten new buses), appellant's forecast of operating expenses was $718,504. *405
The principal items of dispute are the following estimated operating expenses disallowed by the Commission: (a) MANAGEMENT FEES: The Commission completely eliminated $17,836, being "management and supervision fees and expenses" charged appellant by Conway Corporation. Salaries paid appellant's officers totaled $19,760, as follows: Clinton D. Smith, vice-president and general manager of appellant, $11,000; Russell S. Stoughton, treasurer, $4,800; and the president and secretary receive a total of $3,960. The evidence shows that these officers performed all the necessary functions of management. The Commission found that the "management and supervision fees" of $17,837 charged appellant by Conway Corporation were a duplication of charges, and that such services were not reasonable and proper for rate making purposes. From the record it appears that, included in this item of $17,837 charged appellant by Conway Corporation, there were salaries paid as follows: Thomas D. Conway, Jr. (chairman of the board of appellant), $2,765, Smith, $1,010, and Stoughton, $5,954. Further, the evidence fully supports the Commission's statement that Conway Corporation is an affiliate of appellant, and that it owns all of the Class B common stock of appellant. In addition to an item of $5,395 for stenographic and clerical expenses, the bill for $17,837 rendered appellant by Conway Corporation included an item of $2,268 for "Profit of 15 per cent to the Conway Corporation." The Commission, in eliminating the item of $17,837 for management fees, increased the salary allowance of appellant from $19,760 to $22,500, in view of the services rendered by Thomas D. Conway, Jr., as chairman of the board of appellant. Charges arising out of intercompany relationships between affiliates should be scrutinized with care; the burden was upon appellant to show that charges for services rendered by an affiliate were reasonable and proper. Scranton-Spring Brook Water *406 Service Co. v. Public Service Commission,
We are of the opinion that the Commission's final order does not result in confiscation, and that the rates fixed by the final order of the Commission give appellant a fair return on the fair value of its property used and useful in the public service. Cf. Solar Electric Co. v. Pennsylvania Public UtilityCommission, supra,
The order of the Commission is affirmed. *408