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F. DONALD ZUCKER v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/05/79)

decided: June 5, 1979.

F. DONALD ZUCKER, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT; THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in case of F. Donald Zucker v. The Bell Telephone Company of Pennsylvania, No. C-22258.

COUNSEL

F. Donald Zucker, petitioner, for himself.

Charles F. Hoffman, Assistant Counsel, with him Daniel F. Joella, Deputy Chief Counsel, and Kathleen Herzog Larkin, Chief Counsel, for respondent.

Daniel J. Whelan, with him Donald F. Clarke, for intervenor.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Blatt, DiSalle, Craig and MacPhail. Judges Wilkinson, Jr. and Rogers did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 43 Pa. Commw. Page 208]

F. Donald Zucker (Zucker), a customer of the Bell Telephone Company of Pennsylvania (Bell), has filed a petition for review in this Court from a final order of the Pennsylvania Public Utility Commission (Commission) which retained the 50 cent charge for private telephone number service to Zucker.*fn1

Zucker's complaint was considered by Commission as part of proposed revised tariffs filed by Bell. He contends that the Commission has erred in three respects by (1) failing to require Bell to meet its statutory

[ 43 Pa. Commw. Page 209]

    burden of proof requirement; (2) allowing Bell to discriminatorily create a class of subscribers subject to an unjust and unreasonable rate; and (3) exceeding its authority by sanctioning the unlisted charge as a deterrent to the exercise of individual choice to telephone privacy.

This Court's scope of review in rate making cases is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or whether findings, determinations or order of the Public Utility Commission are not supported by substantial evidence. United States Steel Corp. v. Pennsylvania Public Utility Commission, 37 Pa. Commonwealth Ct. 195, 390 A.2d 849 (1978).

Considering Zucker's first argument: Section 312 of the Public Utility Law*fn2 (Law) put the burden of proof on the public utility to show that the rate involved is just and reasonable where there is a complaint involving any proposed rate increases. Here, the challenge is to the propriety of the charge first instituted as part of a general rate increase approved by the Commission in a final order of December 14, 1971. Thus, Zucker's challenge is not within the statutory language of Section 312. The proceeding is not on motion of the Commission, nor does the complaint challenge a proposed rate increase since the 50 cent charge has been in effect five years;*fn3 and no increase of the charge was proposed in the general rate increase filed on November 5, 1976. Rather, Zucker is shouldered with the burden to establish an unjust or

[ 43 Pa. Commw. Page 210]

    unreasonable charge for telephone service. United States Steel Corp. v. Pennsylvania Public Utility Commission, 37 Pa. Commonwealth Ct. 173, 390 A.2d 865 (1978); Deitch Co. v. Pennsylvania Public Utility Commission, 204 Pa. Superior Ct. 102, 203 A.2d 515 (1964). Bell met and carried its burden of proof in the 1971 rate increase; the burden is now upon Zucker to prove that the charge ...


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