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COMMONWEALTH PENNSYLVANIA v. DUQUESNE LIGHT COMPANY (10/22/75)

decided: October 22, 1975.

COMMONWEALTH OF PENNSYLVANIA, FOR ITSELF AND ON BEHALF OF ITS CITIZENS AND RESIDENTS, PLAINTIFF,
v.
DUQUESNE LIGHT COMPANY, DEFENDANT



Original jurisdiction in case of Commonwealth of Pennsylvania, for itself and on behalf of its citizens and residents, v. Duquesne Light Company, a Pennsylvania corporation.

COUNSEL

Philip P. Kalodner, Special Assistant Attorney General, with him Gerry J. Elman, Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.

Charles E. Thomas, with him Jack F. Aschinger, Carroll F. Purdy, and Metzger, Hafer, Keefer, Thomas and Wood, for defendant.

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

Author: Rogers

[ 21 Pa. Commw. Page 396]

The Commonwealth of Pennsylvania, for itself and on behalf of its citizens and residents of the State, has filed its complaint in equity against Duquesne Light Company seeking an injunction restraining the defendant from collecting payment for electric service to the Commonwealth or other customers in excess of a rate set forth in a Supplement No. 14 allowed by the Pennsylvania Public Utility Commission (Commission) and effective August 21, 1974.

The plaintiff filed a motion for preliminary injunction which, after hearing, we denied.

The defendant has now filed preliminary objections which, after argument, are before us for disposition. The objections consist of a petition raising a question of jurisdiction, a motion to dismiss for failure to exhaust a statutory remedy, a demurrer, a petition raising the question of the non-joinder of an indispensable party, and a petition questioning the plaintiff's capacity to sue on behalf of its citizens and residents. We have concluded that this Court has no jurisdiction in equity to review the Commission's action and we therefore sustain the preliminary objections first mentioned.

[ 21 Pa. Commw. Page 397]

The facts of this case and the contentions of the Commonwealth here made are substantively identical to those of Commonwealth v. Metropolitan Edison Company, 18 Pa. Commonwealth Ct. 606, 336 A.2d 917 (1975). We there affirmed a decree of the Court of Common Pleas of Berk's County refusing a preliminary injunction based on the lower court's conclusion that it had no jurisdiction in equity to originally adjudicate a matter of utility rates. Duquesne Light Company here filed three separate tariff Supplements numbered 15, 16 and 17 providing increases over the rates allowed by Supplement No. 14 in the amounts, respectively, of $28,832,276, $33,078,721 and $18,680,611. All three Supplements were to be effective on January 26, 1975. The Commission ordered an investigation of all three Supplements, suspended Supplements Nos. 16 and 17 but took no action concerning Supplement No. 15 which became effective. The Commonwealth seeks to enjoin the collection of charges under the unsuspended Supplement No. 15. The plaintiff states where a public utility files two or more tariff schedules to become effective as to the same customers on the same day, and the Commission orders suspension of the higher tariff or tariffs, the statutory language and policy of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. § 1101, exclude the use of the lower tariff or tariffs as the basis of collection by the utility pending final action by the Commission with regard to the suspended tariff or tariffs. The Commonwealth's thesis is developed primarily from Sections 308(a) and (b) and 310 of the Public Utility Law, 66 P.S. §§ 1148(a) and (b) and 1150. In short, the plaintiff is attacking the practice of utilities in filing more than one Supplement providing for different rates but with the same proposed effective date and the action of the Commission in suspending less than all of such Supplements. The complaint raises no question as to the jurisdiction of the Commission; it is based entirely on provisions of the Public Utility Law which the plaintiff

[ 21 Pa. Commw. Page 398]

    urges should be construed in a fashion which would compel the conclusion that in such circumstances the unsuspended tariff schedule is a nullity.

We see no reason to enlarge on the following from Judge Wilkinson's opinion in Commonwealth v. ...


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