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HOUSING AUTHORITY CITY PITTSBURGH v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (10/11/79)

decided: October 11, 1979.

HOUSING AUTHORITY OF THE CITY OF PITTSBURGH, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT; EQUITABLE GAS COMPANY, INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in case of In Re: Allegheny County Housing Authority Petition for Exception to the Commission's Orders at Investigation Docket 124, No. I.D. 124, F.2-87.

COUNSEL

James R. Duffy, for petitioner, Allegheny County Housing Authority.

John R. Orie, Jr., Assistant General Counsel, with him David B. Washington, General Counsel, for petitioner, Housing Authority of the City of Pittsburgh.

Frank B. Wilmarth, Assistant Counsel, with him Shirley Rae Don, Deputy Chief Counsel, and George M. Kashi, Chief Counsel, for respondent.

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

Author: Macphail

[ 46 Pa. Commw. Page 421]

The Housing Authority of the City of Pittsburgh (Authority) is a public corporation formed pursuant to the Housing Authorities Law (Law), Act of May 28, 1937, P.L. 955, as amended, 35 P.S. § 1541 et seq. to establish and administer low rent public housing in the city of Pittsburgh at rentals established by the United States Department of Housing and Urban Development (HUD) mandate. The Authority operates several buildings including three high rise apartment buildings for low income elderly. Those buildings are presently heated by natural gas furnished by Equitable Gas Company (Equitable).

On October 9, 1976, the Pennsylvania Public Utility Commission (PUC) adopted regulations establishing priorities to be used by utilities in allocating available gas supplies among its customers. 52 Pa. Code §§ 69.21-69.27. Pursuant to those regulations, Equitable classified the Authority's three high rise apartment buildings as Priority 6 -- "Firm large noncritical commercial and industrial requirements for boiler fuel use." The Authority filed a complaint with the PUC contesting that classification and contending that the high rise units should be classified as Priority 1 -- "Residential and firm critical commercial essential human needs." In the alternative, the Authority requested that the PUC grant it an exception to the

[ 46 Pa. Commw. Page 422]

    regulations because of the Authority's peculiar financial and political status as an instrumentality of the Federal and State governments.

After a hearing, an Administrative Law Judge (ALJ) held that the Authority had been correctly classified by Equitable in Priority 6 "as to its boiler load" and that the Authority had failed to carry its burden of proof to sustain its contention that it should be granted an exception to the regulations.*fn1 With some modification not pertinent here, the PUC unanimously approved the decision of the ALJ.

When the Authority's exceptions to the PUC order were denied, this appeal was filed.

The Authority contends that (1) the PUC erred as a matter of law when it approved Equitable's classification of the three high rise buildings as Priority 6 and (2) the classification of the subject buildings as Priority 6 violates the Equal Protection Clause of the United States Constitution because it authorizes less gas ...


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