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decided: May 4, 1972.


Appeals from the Orders of the Pennsylvania Public Utility Commission in cases of Pennsylvania Human Relations Commission, Alvin E. Echols, Jr., and Andrew G. Freeman v. Philadelphia Electric Company, Complaint Docket No. 19107, and Pennsylvania Public Utility Commission v. Philadelphia Electric Company, Complaint Docket No. 19114.


David R. Cashdan, with him Berlin, Roisman & Kessler, and Nathaniel Jones, General Counsel, and Sanford Kahn, for appellant, N.A.A.C.P.

Roy Yaffe, with him Robert Englesberg, Gerald E. Magaro, S. Asher Winikoff, General Counsel, and J. Shane Creamer, Attorney General, for appellant, Pennsylvania Human Relations Commission.

Daniel F. Joella, with him Ronald Ziegler, Assistant Counsel, and Edward Munce, Acting Counsel, for appellee.

Ernest R. von Starck, with him Kenneth R. Myers, Edward G. Bauer, Jr., and Morgan, Lewis & Bockius, for intervenor.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Judge Blatt disqualified herself and did not participate. Opinion by Judge Rogers. Judge Crumlish concurs in the result only.

Author: Rogers

[ 5 Pa. Commw. Page 314]

The National Association for the Advancement of Colored People, Inc., (NAACP) and the Pennsylvania Human Relations Commission (PHRC) here appeal from an order of the Pennsylvania Public Utility Commission (PUC).*fn1

This is a rate case. The Philadelphia Electric Company (Company), a certificated public utility company supplying electricity in the area of the City of Philadelphia, filed increased rates for electric service before the PUC pursuant to Section 308 of the Pennsylvania Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. § 1148. PHRC filed a complaint with the PUC requesting that the Company's rate increase be denied until such time as the Company ". . . can demonstrate at a public hearing that it is in compliance with the Philadelphia Human Relations Ordinance, Title VII of the Civil Rights Act of 1964, and Pennsylvania

[ 5 Pa. Commw. Page 315]

Human Relations Act," that the PUC ". . . conduct a full public investigatory hearing into the employment practices of the Philadelphia Electric Company," that the PUC ". . . withhold from the respondent utility all profits guaranteed to it until such time as it demonstrates that it is in compliance with the PHR Act," and that the PUC ". . . if it finds that the Company is in violation of the fair employment laws order it to undertake affirmative action programs to recruit and train blacks, women, Spanish-surnamed Americans and other minorities*fn2 for jobs which they have been previously denied." On the same day this complaint was filed, the PUC, on its own motion and because protests as to the increased rates had been filed, entered its order suspending the proposed rates and launching an investigation to determine whether such rates were just and reasonable under the Public Utility Law. More than five months after the increased rates were filed by the Company, NAACP filed a petition and an amended petition to intervene in both the complaint proceeding instituted by PHRC and the rate proceeding ordered by PUC. NAACP also charged the company with discrimination in employment and asked for suspension and denial of the rate increases.

The Company moved to dismiss both the PHRC complaint and the NAACP amended petition on the ground that their subject matter, employment discrimination, was outside the statutory powers of the PUC.

At this point PHRC filed its own complaint with itself pursuant to the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43

[ 5 Pa. Commw. Page 316]

P.S. § 951, et seq., charging the Company with discrimination in employment in terms identical with those employed in PHRC's complaint and NAACP's petition to intervene. We are advised that NAACP has not sought to intervene in the proceeding before the PHRC and that no hearings have been scheduled by PHRC on its own complaint since its filing sometime in March of 1971.

The order of the Commission here appealed from dismissed the complaint of the PHRC without prejudice and denied the amended petition of NAACP to intervene. PUC refused to decide whether the issue of discrimination in employment raised by the appellants fell within its jurisdiction or whether it might be determined within the context of a rate proceeding. It concluded that since a complaint raising the same issues was before the PHRC, that body should first determine that issue, after which the PUC would determine its jurisdiction and what action should be taken by it in the premises.

With blithe unconcern for consistency PHRC here urgently espouses a thesis which it just as urgently contested in another case heard by us at the same argument session, to wit, that the PUC rather than the PHRC is the appropriate regulatory agency to determine the existence of and to enjoin racial discrimination. In that case, Pennsylvania Human Relations Commission v. The Philadelphia Electric Company, 776 C.D. 1971, decided this day, we concluded that PUC and not PHRC had jurisdiction to determine and order discontinuance of allegedly discriminatory application of rules relating to security deposits, termination of service for delinquency and provision of home economics information and advice. Our holding in that case was based primarily upon the specific grant of authority in the Public Utility Code to PUC to enforce nondiscriminatory

[ 5 Pa. Commw. Page 317]

    rate and service regulations and the absence of such authority given to PHRC by the Pennsylvania Human Relations Act. We here decide that the PUC has no power to regulate a public utility's employment practices, at least in a rate case, because this power is not given to the PUC by the Public Utility Law but is conferred upon PHRC by the Human Relations Act.

The Pennsylvania Human Relations Act empowers PHRC upon a finding of discrimination in employment to order its discontinuance by the offender. The PHRC and NAACP in this case are seeking to create an additional and unquestionably more effective stricture for such activity in the case of public utilities, that is, the suspension or denial of rate increases and, indeed, withholding of all profits under existing rates in the absence of affirmative proof by the public utility that it is not engaging in discriminatory employment practices. So bold an assertion demands careful consideration and ...

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