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PENNSYLVANIA PETROLEUM ASSOCIATION v. PENNSYLVANIA POWER & LIGHT COMPANY AND PENNSYLVANIA PUBLIC UTILITY COMMISSION (09/23/77)

decided: September 23, 1977.

PENNSYLVANIA PETROLEUM ASSOCIATION, PETITIONER
v.
PENNSYLVANIA POWER & LIGHT COMPANY AND PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENTS



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania Petroleum Association v. Pennsylvania Power & Light Company, Complaint Docket C.21191.

COUNSEL

Ronald Ziegler, with him Tubis, Schwartz & Ziegler, for petitioner.

Robert H. Young, with him Vincent Butler, Walter R. Hall, II, and, of counsel, Morgan, Lewis & Bockius, for respondent, Pennsylvania Power & Light Company.

Edward J. Morris, Counsel and Albert W. Johnson, III, Assistant Counsel, for respondent, PUC.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by Judge Blatt. Judge Crumlish, Jr. concurs in decision only. Judge Kramer did not participate in the decision in this case. Concurring Opinion by President Judge Bowman. Dissenting Opinion by Judge Rogers.

Author: Blatt

[ 32 Pa. Commw. Page 21]

On March 31, 1975, Pennsylvania Power & Light Co. (PP&L) filed supplement numbers 24 and 25 to its Electric Tariff with the Pennsylvania Public Utility Commission (PUC). These supplements requested increases in the rates charged for electricity and a modification in PP&L's rate design (i.e., the relationships of rates charged different customer classes). Hearings on the proposed supplements were held in the period between September 1975 and January 1976. Eighty persons filed complaints with the PUC regarding the supplements and participated in varying degrees in the hearings. Among these complainants was the Pennsylvania Petroleum Association (PPA) which presented two witnesses and 12 exhibits. The PUC issued a formal rate order on September 17, 1976, approving

[ 32 Pa. Commw. Page 22]

PP&L's requested supplement No. 25 rate level and substantially approving its requested rate design. This appeal was initiated by a petition for review filed by PPA from the PUC's order. PP&L has filed a motion to quash, arguing that PPA is not a person aggrieved by the PUC's order and therefore has no standing to bring this appeal.

Prior to the enactment of the Pennsylvania Rules of Appellate Procedure, Section 1101 of the Public Utility Law*fn1 (Act), permitted appeals from orders of the PUC by "any party to the proceedings affected thereby." See City of Pittsburgh v. Pennsylvania Public Utility Commission, 3 Pa. Commonwealth Ct. 546, 284 A.2d 808 (1971). This section was suspended by Pa. R.A.P. 5105(c) and subsequently repealed.*fn2 Appeals from PUC orders must now be taken pursuant to the rules of appellate procedure primarily chapter 15, and Pa. R.A.P. 501 defines the necessary interest a party must have to bring an appeal as follows:

Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order . . . may appeal therefrom. (Emphasis added.)

PPA argues initially that the exemption contained in the above rule applies to allow a party who has been "affected," rather than "aggrieved," by a PUC order to appeal that order. Simply stated, PPA contends that a recent amendment to Section 1112 of the Act, 66 P.S. ยง 1442, has enlarged the right of appeal from orders of the PUC to include persons "affected" by such orders, which PPA implies is a less stringent

[ 32 Pa. Commw. Page 23]

    standard.*fn3 The text of that section, however, does not support PPA's argument but instead reads as follows with the amended language emphasized and the superseded language bracketed:

Whenever the commission shall make any rule, regulation, finding, determination, or order under the provisions of this act, the same shall be prima facie evidence of the facts found, and shall remain conclusive upon all parties affected thereby, unless set aside, annulled, or modified [in an appeal taken as provided in this act] on judicial review.

We do not believe that this amendment was intended to confer a basis for seeking appellate review. Both the former and the present versions of Section 1112 describe only the weight to be given orders of the PUC when collaterally challenged, and thus prohibit "parties affected" by the order from challenging it other than upon direct judicial review. We believe that the amendment of the section was intended merely to conform the section with the terminology employed in the appellate rules*fn4 and not to enlarge the right to appeal orders of the PUC.

Although undefined in the appellate rules, the concept of "aggrievement" of a party by an order which confers standing on that party to appeal that order has been ...


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