William H. Eckert, Emory R. Kyle, Smith, Buchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, Charles L. McCormick, Pittsburgh, Oliver B. Merrill, Sullivan & Cromwell, New York City, for appellant.
Lloyd S. Benjamin, Counsel, W. Russel Hoerner, Asst. Counsel, Harrisburg, for Penna. Public Utility Commission.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 174 Pa. Super. Page 125]
This is an appeal by West Penn Power Company from an order of the Pennsylvania Public Utility Commission of February 16, 1953. A petition for rehearing and stay of that order was denied by the Commission on April 6, 1953.
In this appeal the Company takes the position that the action of the Commission on October 26, 1951, constituted a final order with a finding that the rates under tariff No. 30 previously filed by the Company were just and reasonable, and that the Commission was without authority to summarily issue its subsequent order of February 16, 1953, in which it held the same rates to be in part excessive and ordered refunds. The Commission, on the other hand, asserts that its initial action on October 26, 1951, was no more than a decision not to further suspend the rates under tariff No. 30 and was interlocutory, and that consequently its order of February 16, 1953, was the first final order in the rate proceeding and entirely proper.
The Commission in its brief concedes that if its action on October 26, 1951, was a final order of the Commission
[ 174 Pa. Super. Page 126]
with a finding that the rates proposed in tariff No. 30 were reasonable the Commission lacked authority to issue its subsequent order of February 16, 1953. The Commission also concedes that if its action on October 26, 1951, was such a final determination the rates under tariff No. 30 are commission-made rates of that date, and that no refunds can be ordered. The Commission further acknowledges that under section 1007 of the Public Utility Law of May 28, 1937, P.L. 1053, 66 P.S. § 1397, notice must be given and hearing granted before the Commission may modify a prior order, and that such section prohibits making acts done in pursuance of a prior order, illegal or invalid, with retroactive effect.
On February 28, 1951, the Company filed with the Commission tariff No. 30 to be effective April 29, 1951, and to supersede tariff No. 25. It was designed to produce an increase of $4,500,000 in annual operating revenues over those received under the previous tariff. By its order of April 24, 1951, the Commission suspended the operation of the proposed tariff (No. 30) for a period of six months until October 29, 1951. At the same time the Commission initiated an investigation on its own motion for the purpose of determining the fairness, justness, reasonableness, and lawfulness of the proposed tariff, the investigation to include consideration of the imposition of temporary rates. No complaints were filed with the Commission as to tariff No. 30 or the increase in rates provided therein. Hearings were held on twenty-one days, beginning May 23, 1951, at which evidence was introduced by the Company and the Commission.
On October 26, 1951, duly authorized personnel of the Commission informed officials of the Company that the Commission had decided the rates under tariff No. 30 ...