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decided: July 13, 1977.


Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania Public Utility Commission v. Duquesne Light Company, Rate Investigation Docket No. 373.


Charles E. Thomas, with him Jack F. Aschinger, Carroll F. Purdy, Charles E. Thomas, Jr., and Thomas & Thomas, for petitioner.

Kathleen Herzog Larkin, First Assistant Counsel, with her Michael Kerrigan, Assistant Counsel, and Barnett Satinsky, Chief Counsel, for respondent.

Albert D. Brandon, for Consumer Advocate.

Dennis S. Shilobod and Messer & Shilobod, for private complainants.

Marvin A. Fein, for City of Philadelphia.

Robert J. White and F. Bruce Abel, for Armco Steel.

Judge Rogers. Memorandum Opinion and Order by Judge Rogers.

Author: Rogers

[ 31 Pa. Commw. Page 120]

The Duquesne Light Company has filed a petition for review pursuant to both Sections 401 and 403(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §§ 211. 403(1), 211.401. Presently before this judge is Duquesne Light Company's "Application for Stay or Supersedeas" of a Public Utility Commission's order entered July 6, 1977 requiring Duquesne Light Company to reduce its rates and charges to a level which will produce gross revenues not in excess of 12 million dollars annually over rates in effect at June 30, 1976.

A very brief history of preceding events is as follows: In October 1976, Duquesne Light Company filed with the Commission Supplement No. 2 to its Tariffs proposing an annual increase in rates in the amount of about $128,000,000; with its filing, Duquesne Light Company asked for "Emergency Rate Relief" in the amount of $89,000,000; on October 20, 1976, Duquesne Light Company filed with the Commission a Petition for Emergency Rate Relief lowering the amount of its request for "Emergency Rate Relief" to about $87,000,000; on December 9, 1976, the Commission suspended the proposed $128,000,000 Supplement No. 2 but ordered that Duquesne might file another Supplement effective on the one day's notice designed to produce annual revenues not to exceed $60,000,000 in excess of those in effect at June 30, 1976, pending the Commission's investigation of Tariff Supplement No. 2; Duquesne filed such a Supplement; apparently some of the present respondents protested the December 9, 1976 order allowing the $60,000,000 increase, and the Commission referred the matter to an Administrative

[ 31 Pa. Commw. Page 121]

Law Judge who, after conducting extensive hearings, filed a report and proposed decision upholding the December 9, 1976 order to which some of the parties below filed exceptions; the Administrative Law Judge's report was made March 22, 1977; the Commission did not act until by its order of July 6, 1977, which has been appealed and which we are asked to supersede, it reduced the $60,000,000 annual increase to $12,000,000.

We find nothing in the Public Utility Law as now written which provides for an application for "Emergency Rate Relief" or for the allowance of such by the Commission, without notice or hearing, as was done here by the order of December 9, 1976. The parties may have been anticipating amendments to the law effected by the Act of October 7, 1976, P.L. 1057 which permit, but not without hearing, "extraordinary rate relief." This change does not become effective until October 1977.

As we view the law, Sections 308 and 310, 66 P.S. §§ 1148, 1150, as now written, provide for the filing of a change in Tariff which becomes effective in 60 days, unless suspended by the Commission pending investigation. The Commission's suspension may be for no longer than nine months. If the utility needs relief in the meantime, the Commission may fix temporary rates. Temporary rates may, however, be established only "after reasonable notice and hearing." Hence, as we have observed, we are at a loss to understand the basis in law for the Commission's December 9, 1976 order. However, it was not appealed from. Rather, some of the present respondents seem to have protested its promulgation without hearing and an administrative law judge conducted extensive hearings. The Commission then promulgated its July 6, 1977 order reducing the increase in rate to $12,000,000 annually.

[ 31 Pa. Commw. Page 122]

It is our opinion that the July 6, 1977 order was one fixing temporary rates pursuant to Section 310 of the Public Utility Law, and that this Court may not disturb that order by stay or supersedeas. Section 1111 of The Public Utility Code, 66 P.S. § 1441 forbids us from staying Commission orders where jurisdiction is not in question. Since the order was one the Commission could make we see no jurisdiction problem.

We add to this memorandum a reminder that an incident of temporary rates is that if the rates finally determined are in excess of temporary rates, the public utility may recover by a temporary increase over the rates finally determined the difference between the gross income obtained from the temporary rates and the gross income which would have been obtained under the rates finally determined if applied during the period the temporary rates were in effect.

We have given careful consideration to Duquesne Light Company's three arguments: first, that the $60,000,000 tariff which it filed pursuant to the Commission's December 9, 1976 order became an existing and duly established rate which could not under Section 308 be thereafter changed by the Commission; second, that the July 6, 1977 order is of no effect because the Commission did not rule on exceptions to the administrative law judge's proposed decision as required by the Act of October 7, 1976, P.L. 1075, amending Section 7 of the Act of March 31, 1937, P.L. 160, 66 P.S. § 458.6; and third, that the Commission violated the Sunshine Law. We find them unpersuasive.


And Now, this 13th day of July, 1977, it is ordered, adjudged and decreed that the Duquesne Light Company's application for a stay or supersedeas be and the same hereby is refused.


Petition for stay or supersedeas refused.


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