Wеst Penn Power Company, Petitioner v. Pennsylvania Public Utility Commission, Respondent.
Docket No. C-844087
Commonwealth Court of Pennsylvania
February 13, 1987
521 A.2d 75
JUDGE DOYLE
While there may be situations in which a delay of one year would prejudice professional employees in their ability to contest the reason for their suspension and their selection, thereby making the delay unreasonable, such a situation does not exist in this case. Petitioner has not argued that either the curtailment or his selection were improper. The record shows a vigorous cross-examination was conducted on both of these points and that the circumstances surrounding both were fully elucidated. Petitioner had reasonable notice and opportunity to be heard.
In accord with the foregoing analysis, we affirm.
ORDER
AND NOW, February 13, 1987, the ordеr of the Court of Common Pleas of Erie County in the above-captioned matter is affirmed.
N.T. at 31-48.
521 A.2d 75
West Penn Power Company, Petitioner v. Pennsylvania Public Utility Commission, Respondent.
Richard A. Cohn, Assistant Counsel, with him, Louise A. Knight, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
Richard G. Fishman, for intervenor, Goldie King.
OPINION BY JUDGE DOYLE, February 13, 1987:
This is an appeal by the West Penn Power Company (West Penn) from an order of the Public Utility Commission (Commission) adopting the order of Administrative Law Judge SOLOMON (ALJ), which directed that West Penn amend its Manual of Procedures pertaining to credit standards “to insure that the absence of prior crеdit history on the part of the customer does not, in and of itself, result in a determination that a customer is an unsatisfactory credit risk.” The order further directed that the Manual of Procedures and related forms pertaining to the collection of security deposits from applicants be amended, thus ending West Pеnn‘s practice of “issuing a notice of termination prior to the occurrence of a default on the part of a customer who has been requested to pay a security deposit.” The ALJ also ordered payment of a $250 civil fine. This amount was increased by the Commission to $1,000, but in all other respects the Commission adopted the order of the ALJ.
This case was brought before the Commission by a private complainant, Goldie King. King, who is separated from her husband, began receiving service from West Penn on January 17, 1984 at her residence at 214
If service is connected pending credit investigation and customer‘s credit rating proves unsatisfactory, prepare Termination Notice for Applicant with Unsatisfactory Credit, form 11-191 [later retitlеd Security Deposit Request-Applicant] in duplicate and Termination Notice-Resident Ratepayer, form 11-189.
Commission Regulation 56.32,
A utility shall provide residential service without requiring a deposit when the applicant satisfies one of the following requirements . . .
(2) . . . The applicant . . . is renting his place of residence under a leаse of one year or
longer in duration, unless the applicant has an otherwise unsatisfactory credit history as an [sic] utility customer within two years prior to the application for service.
In addition this regulation further provides:
(i) The absence of prior credit history does not, of itself, indicate an unsatisfactory risk.
The ALJ found that West Penn had violated Regulation 56.32 by requiring a security deposit from King based only upon its determination that she had no prior credit history. And, although West Penn contends that that was only one of its reasons for requiring the security deposit, the ALJ found that no other reason was given to King. The ALJ also found, however, that King was not entirely without fault because she had not on her application indicated the existence of her one-year lease and that when such information was provided to West Penn, it withdrew its request for a security deposit. Therefore, the ALJ imposed no sanction against West Penn for this violation.
The ALJ then considered the issue of whether the mailing of the termination notice along with the security deposit request was in violation of the Commission‘s regulations. He noted first that under Regulation 56.99,
On appeal to this Court, West Penn does not argue that it did nоt violate the Commission‘s regulations. Instead, it asserts (1) that because the request for the security deposit was withdrawn the case is moot, (2) that King suffered no injury so that the case should be dismissed, and (3) that the ALJ‘s initial order is null and void because it was not entered within 90 days after the record was closed.
We shall examine this last point first inasmuch as the allegation is that the referee and Commission lacked subject-matter jurisdiction to enter any order more than 90 days after the record had been closed. Section 332(g) of the Public Utility Code (Code),
[H]earings shall be commenced by the administrative law judge within 90 days after the proceeding is initiated, and he shall render a decision within 90 days after the record is closed, unless the Commission for good cause by order allows an extension not to exceed an additional 90 days.
It is agreed that no extension was sought and thаt the order was not entered by the ALJ until eleven months after the record was closed. It appears that this delay
Whether a statute is mandatory or directory must be determined by considering legislative intеnt gleaned from review of the entire statute and from considering the nature and object of the statute and the consequences of the construction of it one way or the other. Pennsylvania Railroad Company v. Board of Revision of Taxes, 372 Pa. 468, 93 A.2d 679 (1953). If the thing directed to be done is the essence of the thing required, the statute is mandatory. Id. If, however, the statute merely directs thаt certain proceedings be done in a certain manner or at a certain time, it is directory. Prichard v. Willistown Township School District, 394 Pa. 489, 147 A.2d 380 (1959). Failure to follow a mandatory statute renders the proceedings void, whereas failure to follow a directory statute does not. American Labor Party Case, 352 Pa. 576, 44 A.2d 48 (1945).
We note initially that it was the adjudicatory body, not the litigants, which failed to сomply with the time provisions. For this reason we find this case analogous to Moore Nomination Petition, 447 Pa. 526, 291 A.2d 531 (1972). The issue in Moore was whether the provision in Section 977 of the Pennsylvania Election Code,2
West Penn next argues that because it withdrew its request for a security deposit the case is moot. While this is debatable because the injunctive order and fine were imposed because of uncontested violations of West Penn, even assuming arguendo that the issue is moot at least as to King, the ALJ found that West Penn has repeatedly used collection procedures which were in violation of Commission regulations.
Although generally a court will not decide moot cases, there is an еxception where the conduct complained of is capable of repetition, yet will evade future review. Commonwealth v. Joint Bargaining Committee for the Pennsylvania Social Services Union, 484 Pa. 175, 398 A.2d 1001 (1979). In the instant case, were we to permit King‘s appeal to be dismissed as moot, West
West Penn in a related argument contends that King has not been injured and therefore that the case befоre the Commission should have been dismissed on this basis. We disagree. It is well-settled that the Commission is without power to grant a remedy to injured litigants. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). It may use its remedial powers only to govern public utility policies. Id. Therefore, even if a complainant could demonstrate an individual injury in the nature of monetary damage, thе Commission could not provide him relief. To require such a showing of injury when no relief could be granted is to construe the law in an absurd fashion and we decline to do so. Case law does instruct, however, that a violation of the Code is an injury per se to the general public. Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 406, 52 A.2d 317, 321 (1947). We thus believe that, if the complainant can demonstrate that such violаtion occurred with respect to him or her personally, an injury per se is shown. King has done so in the instant case and, accordingly, the Commission properly refused to dismiss the case on this basis.
Having determined that the Commission correctly resolved the issues below, we affirm its order.
Now, February 13, 1987, the order of the Public Utility Commission, Docket No. C-844087, entered October 29, 1985, is hereby affirmed.
DISSENTING OPINION BY SENIOR JUDGE KALISH:
I must respectfully dissent.
On February 24, 1984, West Penn, by letter, requested that King post a security deposit by March 5, 1984, because she had no credit history. Enclosed within the letter requesting a security deposit was a notice that if the security deposit was not paid by a certain time, service would be terminаted. When she showed West Penn a one-year lease to her present address, she was given electric service without paying a security deposit and was informed that there would be no termination of service.
King filed a complaint with the Commission, contending that it was wrong for West Penn to request a security deposit and simultaneously send a termination of service notice if the deposit is not paid by a certain time. She filed her complaint as an individual and not in the form of a class action. West Penn contends that when the matter reached the Commission and indeed this Court, it was moot.
The Commission found that under the circumstаnces involving West Penn‘s withdrawal of the deposit request and termination notice, it would be unjust to impose a sanction upon the utility. In other words, as to this situation, there was no justiciable issue. However, it felt that since the termination notice was sent simultaneously with the request for a security deposit, this termination noticе constituted a collection device contrary to the Commission‘s regulations.
The mootness doctrine requires that the exercise of judicial power depends upon the existence of a contro-
A party‘s cessation of conduct sought to be prohibited by administrative action does not render a case moot unless there is a showing, as to the complaining party, that there is no reasonable expectation оf repetition of the wrong. DeFunis. As to this applicant, Goldie King, the Commission recognized that except for the termination notice, there would be no controversy. However, the termination notice was so inextricably bound to and conditioned on the security deposit request, that once that request was rescinded, the termination notice was of no effect, and there was no longer a justiciable issue at hand. The entire matter was moot.
Under the circumstances of this case, there was no reasonable expectation of a repetition. There was no conduct to enjoin. This was not a clаss action. The applicant was not suffering a continuing harm. Nor was this issue of such great importance that this court should reach the merits as in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 85 A.2d 851 (1952), where there was a question of interplay between constitutional law and labor law.
Accordingly, I would reverse the decision of the Commission.