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COMMONWEALTH PENNSYLVANIA v. WILLIAM B. TENNY (02/08/77)

decided: February 8, 1977.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, PLAINTIFF
v.
WILLIAM B. TENNY, DEFENDANT. HAMPDEN WATER CO. AND SHIRLEY TENNY, PARTIES DEFENDANT



Original jurisdiction in case of Pennsylvania Public Utility Commission, Plaintiff v. William B. Tenny, Shirley Tenny and Hampden Water Company, Defendants.

COUNSEL

William T. Hawke, Assistant Counsel, with him Michael Kerrigan, Assistant Counsel, George Kashi, Assistant Counsel, and Edward J. Morris, Counsel, for plaintiff.

No appearance for defendant.

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

Author: Mencer

[ 28 Pa. Commw. Page 502]

On August 10, 1970, the Pennsylvania Public Utility Commission (Commission) issued an order opening an investigation, pursuant to Article X of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended (Act), 66 P.S. § 1391 et seq., as to whether the water service facility owned and operated by William B. Tenny (Tenny) constituted a de facto public utility in violation of the Act. Following a hearing, the Commission issued an order, on July 26, 1971, finding Tenny's water service facility to be a de facto public utility subject to state regulation and requiring Tenny to (1) file with the Commission, within 30 days, an application for a certificate of public convenience to furnish water service to the public and (2) continue to provide adequate service to all customers, upon

[ 28 Pa. Commw. Page 503]

    payment of the monthly charges which Tenny was making as of July 26, 1971. This order was not appealed.

Thereafter, on August 6, 1971, upon application by the Commission, this Court issued a temporary injunction compelling Tenny to provide water service to certain individuals who had been, or were at that time, threatened with a discontinuance of service. Subsequently, this action was discontinued as a result of a compromise agreement. On October 7, 1971, pursuant to the compromise agreement, Tenny, through his then counsel, filed an application on behalf of Hampden Water Company for a certificate of public convenience. This application was in accord with the provisions of Section 203 of the Act, 66 P.S. § 1123. Following a hearing held by the Commission on January 3, 1972, the application of Hampden Water Company for a certificate of public convenience was approved by order of the Commission under date of May 15, 1972.

On December 9, 1971, in the name of Tenny (Ridgeland Water Facility), a tariff of rates for water services was filed with the Commission. However, Tenny has persistently denied any knowledge of or consent to the filing of this tariff which he contends included a schedule of rates wholly without relation to the value or operating cost of his water service facility. Tenny asserts that it was his belief that a tariff rate in accordance with the proposed schedule of rates included in paragraph 9 of his application on behalf of Hampden Water Company for a certificate of public convenience was the applicable schedule of rates for water service. Thus resulted a disagreement between Tenny and the Commission as to the proper tariff to be implemented by the Hampden Water Company. Subsequently, Tenny filed a tariff on July 31, 1974,

[ 28 Pa. Commw. Page 504]

    to be effective July 1, 1974. However, on August 10, 1974, the Commission returned Tenny's tariff filed on July 31, 1974, stating that it was not filed in accordance with the Commission's tariff regulations. The Commission specifically noted in its letter of rejection that the document was defective because it contained an improper effective date of July 1, 1974, since Section 308 of the Act, 66 P.S. § 1148, provides that "no public utility shall make any change in any existing and duly established rate, except after sixty days' notice to the commission" and because the tariff did not contain the supporting data required by the Commission's tariff regulations.*fn1 The same tariff was refiled twice by Tenny, together with documents supporting the validity of the original filing but each time was returned by the Commission for the same reasons as previously stated.

On October 16, 1974, the Commission filed a complaint in equity seeking a temporary restraining order prohibiting Tenny from interrupting water service to any of the customers of the Hampden Water Company for nonpayment of bills computed pursuant to the proposed tariff increase filed with the Commission on July 31, 1974. This Court entered a temporary restraining order on October 16, 1974, and, after hearing on October 21, 1974, entered an order continuing ...


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