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DUQUESNE LIGHT COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (07/29/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 29, 1977.

DUQUESNE LIGHT COMPANY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT

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.

COUNSEL

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 Kerrgan, 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.

Author: Per Curiam

[ 31 Pa. Commw. Page 123]

By order dated July 13, 1977, Judge Rogers refused to supersede an order of the Public Utility Commission entered July 6, 1977 reducing a so-called emergency rate increase earlier allowed Duquesne Light Company in the amount of 60 million dollars to the amount of 12 million dollars annually. Duquesne Light Company has now filed an application for reargument of its application for supersedeas. The application for reargument will be refused.

Duquesne's principal contention, and the only one meriting further discussion, is that the 60 million dollar annual rate increase allowed by the Commission on December 9, 1976 was a new tariff, not subject to change by the Commission. It relies principally on Section 308 of the Public Utility Law, 66 P.S. 1148. That section is as follows:

(a) Unless the commission otherwise orders, no public utility shall make any change in existing and duly established rate, except after sixty days' notice to the commission, which notice shall plainly state the changes proposed to be made in the rates then in force, and the time when the changed rates will go into effect. The public utility shall also give such notice of the proposed changes to other interested persons as the commission in its discretion may direct. All proposed changes shall be shown by filing new tariffs or supplements to existing tariff filed and in force at the time. The commission, for good cause, shown, may allow changes in rates, without requiring the sixty days' notice, under such conditions as it may prescribe. (Emphasis added.)

[ 31 Pa. Commw. Page 124]

(b) Whenever there is filed with the commission by any public utility any tariff stating a new rate, the commission may, either upon complaint or upon its own motion, upon reasonable notice, enter upon a hearing concerning the lawfulness of such rate, and pending such hearing and the decision thereon, the commission, upon filing with such tariff and delivering to the public utility affected thereby a statement in writing of its reasons therefor, may, at any time before it becomes effective, suspend the operation of such rate for a period not longer than six months from the time such rate would otherwise become effective, and an additional period of not more than three months pending such decision. The rate in force when the tariff stating the new rate was filed shall continue in force during the period of suspension, unless the commission shall establish a temporary rate as authorized in section three hundred ten of this act. The commission shall consider the effect of such suspension in finally determining and prescribing the rates to be thereafter charged and collected by such public utility. (Emphasis added.)

(c) If, after such hearing, the commission finds any such rate to be unjust or unreasonable, or in anywise in violation of law, the commission shall determine the just and reasonable rate to be charged or applied by the public utility for the service in question, and shall fix the same by order to be served upon the public utility; and such rate shall thereafter be observed until changed as provided by this act.

Duquesne, depending on the emphasized last sentence of Section 308(a), says that the Commission could,

[ 31 Pa. Commw. Page 125]

    without notice or hearing, carve out of its, Duquesne's, singular tariff filing on the amount of 128 million dollars, the amount of 60 million dollars annually and allow this increase pending a final decision on the requested $128,000,000 increase. Duquesne's argument overlooks the fact that the Commission suspended the 128 million dollar proposed tariff. The sentence of Subsection 308(b) which we have emphasized, could not more explicitly state that where a tariff has been suspended no new rate may be effective except one fixed as a temporary rate pursuant to Section 310. In our view, the emphasized sentence of Subsection 308(a), on which Duquesne relies, means only that the Commission may permit a tariff to go into effect before the expiration of the 60 days notice period fixed by that subsection. Subsection 308(a) does not deal with a tariff which the Commission has suspended but with a tariff which the Commission believes for good cause should become effective before the expiration of 60 days notice period.

Further, the nine months period for suspension of the $128,000,000 tariff will expire in September of 1977. The reduction in increased revenues effected by the July 6, 1977 order is from five million dollars a month to one million dollars a month for about two months. We are not convinced that this reduction, which, as Judge Rogers pointed out in his earlier order may be recouped when rates are finally determined, is such a hardship as to justify superseding the Commission's order.

Order Per Curiam

And Now, this 29th day of July, 1977, the application of Duquesne Light Company for reargument is refused.

19770729

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