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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (02/07/75)

decided: February 7, 1975.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT, AND ALLIANCE FOR CONSUMER PROTECTION -- HILL DISTRICT BRANCH, AND ELIZABETH GUNTER, INTERVENING APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Commonwealth of Pennsylvania v. The Bell Telephone Company of Pennsylvania, Complaint Docket No. 19821, and Alliance for Consumer Protection-Hill District Branch, et al., Complaint Docket No. 19819.

COUNSEL

Gerry J. Elman, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

Lewis M. Taffer, for intervening appellants.

Albert W. Johnson, III, with him Daniel F. Joella, and Edward Munce, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 17 Pa. Commw. Page 352]

We have before us two issues for determination in this administrative agency appeal: 1) Did the Pennsylvania Public Utility Commission, Appellee herein, (PUC) deny due process of law to the Commonwealth of Pennsylvania, Appellant, (Commonwealth) and the Alliance for Consumer Protection, Intervening Appellant, (ACP) by not making available to the Commonwealth and ACP technical staff reports of PUC? and; 2) Did PUC err in amortizing expenses incurred due to tropical storm Agnes over a ten year period in determining revenue requirements for rate making purposes?

The complex factual situation which sets the stage for this appeal can be summarized as follows. On December

[ 17 Pa. Commw. Page 3537]

, 1972, the Bell Telephone Company of Pennsylvania, Intervening Appellee, (Bell), filed revisions to tariffs to become effective February 7, 1973, proposing increases and changes in existing local service rates, connection, service and equipment charges. By order dated February 6, 1973, the PUC suspended the operation of these tariff revisions and commenced an investigation into the reasonableness and lawfulness of the proposed changes. The Commonwealth, on February 6, 1973, filed a complaint with PUC alleging, inter alia, that these changes "[were] unjust, unreasonable and in violation of the law . . . in violation of Article III, Section 301 et seq. of the Public Utility Law." Twenty-three days of hearings were held during the period May 2, 1973-August 10, 1973 at Harrisburg, Philadelphia and Pittsburgh at which witnesses appeared for Bell, Commonwealth and other complainants.

Of critical importance to this appeal is the objection made by counsel for Commonwealth to PUC's position that counsel for the Complainants and Respondent would not be permitted to review staff reports before they were submitted to the Commissioners for possible suggestions, objections or comments. Objections by Commonwealth and a petition by ACP deploring this procedure were overruled. By order dated December 12, 1973, PUC rendered a final determination on the merits. Petitions for reconsideration and reopening by Commonwealth and ACP were denied, hence this appeal.

The first of Appellants' two positions is that the conduct of the agency constituted a denial of due process when PUC refused to allow interested parties access to the Commission's technical staff reports which were used to determine the appropriateness of the tariff changes. These reports, in fact, analyze and recommend positions developed or incorporated in the record. Relying on Morgan v. ...


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