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decided: September 29, 1978.


Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania Public Utility Commission v. Octoraro Water Company, No. R.I.D. 292.


W. Russel Hoerner, with him of counsel, Morgan, Lewis & Bockius, for petitioner.

Melville G. M. Walwyn, Assistant Counsel, with him Daniel F. Joella, Assistant Counsel, and Barnett Satinsky, Chief Counsel, for respondent.

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

Author: Crumlish

[ 38 Pa. Commw. Page 84]

Octoraro Water Company (Appellant) appeals the order of the Pennsylvania Public Utility Commission (PUC) promulgated on December 19, 1976, R.I.D. No. 292, granting it an increase in its annual operating revenues of $23,838 by way of a second stage tariff supplement.*fn1 Appellant had requested additional revenues of $129,166. We set aside this order and remand these proceedings to the PUC because, as we said in a similar case, viz, West Penn Power Company v. Pennsylvania Public Utility Commission, 33 Pa. Commonwealth Ct. 403, 406, 381 A.2d 1337, 1339 (1978):

[T]he want of adequate discussion and critical findings of fact leading to the conclusion does not enable us to perform our judicial role. To pass upon the merits of these appeals on the

[ 38 Pa. Commw. Page 85]

    present record before us would cast us in the role of making an independent judgment on the merits based upon the whole record before us, a role not given to us by law nor one which we are qualified to assume.

PUC's findings of fair value and fair rate of return were totally conclusionary and unsupported by any factual finding or meaningful reasoning. PUC determined the fair value of Appellant's utilities to be $1,970,000. The original cost thereof was $1,751,377. Thus, the fair value was found to be only 111% of its original cost. The trended original costs*fn2 or reproduction costs of Appellant's property varied, depending upon the precise method used, from approximately $6,100,000 to $5,200,000.*fn3 There was no testimony to the contrary and these figures seem to have been accepted as correct by the PUC. The sum total of PUC's discussion leading to their conclusion of fair value is contained in the following paragraph of their order:

In consideration of the foregoing, and taking into account our comments in previous sections of this Order, all based on thorough investigations, analyses, and testing of data, we find and determine for the purpose of these proceedings,

[ 38 Pa. Commw. Page 86]

    the fair value of respondent's property used and useful in public service at June 30, 1975 to be $1,970,000.

The "foregoing" referred to above was a statement to the effect that PUC should exercise its reasonable judgment in setting fair value giving consideration to original cost and the average reproduction cost. Their "comments in previous sections" were nothing more than statements indicating general acceptance*fn4 of the values supplied by Appellant. The mere statement that the PUC has investigated, analyzed and tested the data supplied to it is not an adequate substitute for actually setting forth the basis of its deliberation. Without such information, this Court cannot review the propriety of its determination.

In a similar case, Pennsylvania Gas and Water Company-Water Division v. Pennsylvania Public Utility Commission, 33 Pa. Commonwealth Ct. 143, 381 A.2d 996 (1977), we overruled a determination by the PUC which set the fair value of a utility at 121% of its original cost. In reviewing that case, we wrote:

[W]e decline to conclude that this figure alone establishes an abuse of discretion per se, because there may exist a situation, however improbable, in which stability of prices for materials, increased labor productivity, enhanced technological efficiency, or some combination thereof would make reproduction cost sufficiently low that a reasonable fair value figure may exceed net original cost by a lesser percentage. Where, however, there is no direct evidence in the record of such a low reproduction cost and no evidence suggesting the presence of the listed economic

[ 38 Pa. Commw. Page 87]

    factors even approaching the extent necessary to produce such a low ratio of fair value to net original cost, the conclusion becomes inescapable that the PUC arbitrarily and capriciously ignored the evidence or its duty under the law in setting fair value. (Emphasis in original.)

33 Pa. Commonwealth Ct. at 151, 381 A.2d at 1000-1001.

The portion of PUC's order concerning fair rate of return was equally conclusionary and unsupported by reasoning or findings of fact. For example, in determining the cost equity, the PUC noted that the earning to price ratio of similar utilities (a method relied on by Appellant) was a particularly useful tool in determining the fair rate of return on equity. Appellant's unrebutted witness testified that the earnings price ratio of similar utilities was 11.1% to which he added an additional 4% for the cost of equity risk. This 4% was disallowed after discussion by PUC, but without any reasoning whatsoever, the rate of return for equity was further reduced to 9.76%.*fn5 In the absence of any supporting finding of fact or reasoning, we must hold this figure unsupported by the evidence and hence arbitrary. There are numerous other similar examples, but in view of our decision to remand, we will not discuss them.

PUC attempts to justify its determination by reference to its purported right to make pragmatic adjustments in the required values to yield what it judges to be an equitable result. This contention was raised in

[ 38 Pa. Commw. Page 88]

    discussion, findings of fact and conclusions of law are sufficiently comprehensive and adequate to enable this Court on review thereof to determine the merits of any appeal from such revised order.


Order set aside. Case remanded.

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