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CITY OF PITTSBURGH v. PENNSYLVANIA PUC

April 27, 1981

CITY OF PITTSBURGH and Mayor Richard S. Caliguiri, Plaintiffs,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, Defendant



The opinion of the court was delivered by: SIMMONS

OPINION AND ORDER

Plaintiffs are the City of Pittsburgh and Mayor Richard S. Caliguiri. The City of Pittsburgh and Mayor Richard S. Caliguiri are Complainants and Intervenors in the rate case now pending before the Pennsylvania Public Utility Commission docket at R-80011069 and captioned Pennsylvania Public Utility Commission, et al vs. Duquesne Light Company.

 The Defendant is the Pennsylvania Public Utility Commission, hereinafter referred to as P.U.C., a state Administrative Agency established pursuant to 66 Pa. C.S.A. § 301, et al, with an office in Pittsburgh.

 Plaintiff alleges that the P.U.C. regularly conducts rate hearings which are governed by the Federal Public Utility Regulatory Policies Act, 16 U.S.C. § 2601 et seq. Among such proceedings currently before that Commission is the above referred to Duquesne Light Company's rate case. The Plaintiffs, by petition, have requested the Defendant to make transcripts available to them at reproduction costs in the current rate-making proceeding involving Duquesne Light Company. Defendant has refused to make such transcripts available by interpreting 16 U.S.C. § 2632(c) to require only that Plaintiffs be entitled to purchase a transcript from an independent reporting service. The Independent Reporting Service charges $ 1.35 per page for transcripts, whereas the Defendant, using its own personnel and photocopying equipment could reproduce the transcript for less than $ .15 per page. If Plaintiffs were supplied with copies of the transcript for reproduction, they could reproduce it for less than $ .10 per page. Transcripts are estimated to exceed 3,500 pages in the Duquesne Light Company rate-making proceeding.

 Plaintiffs allege three counts against the P.U.C. as follows:

 
Count I: That Defendant is in violation of 16 U.S.C. § 2632(c) by refusing to make transcripts available to parties and intervenors in rate-making proceedings.
 
Count II: Pursuant to 42 U.S.C. § 1983, Defendant, by custom and usage, has deprived Plaintiffs of their statutory right under 16 U.S.C. § 2632(c), to receive copies of transcripts at reproduction cost in rate-making proceedings and other proceedings relating to rates and rate design.
 
Count III: Defendant, by entering into a contract with reporting services, whereby intervenors and parties to proceedings are required to purchase a transcript from the reporting service and cannot reproduce the copies in Defendant's public files have entered into a contract which violates the Sherman Act and restrains trade in Interstate Commerce.

 Plaintiffs seek a permanent injunction against these parties and procedures.

 A Motion to Dismiss Complaint and a Motion for more Definite Statement were filed by Defendant, P.U.C. Defendant asks to dismiss the action on the basis of insufficiency of service of process; that the Complaint fails to state grounds upon which the Court's jurisdiction depends; that the Court lacks jurisdiction over the subject matter; and that the Court should dismiss because the principles of comity and abstention apply.

 Defendant seeks a more definite statement in that Plaintiffs allege Defendant's contracts with court reporters is a restraint of trade; however, Defendant claims that Plaintiffs have not alleged how such contracts restrain trade, the specific acts of Defendant which restrained trade, the manner in which such activity violates 15 U.S.C. §§ 1 and 2, and the amount of Interstate Commerce involved.

 This Court will not discuss all of the issues raised by the Defendant for the reason that the Federal Public Utility Regulatory Policies Act, 16 U.S.C. § 2633(a) expressly prohibits this Court from taking jurisdiction of the subject matter of this action.

 A reason for dismissal of the instant case is the unequivocal prohibition against this Court taking jurisdiction of the subject matter, contained in 16 U.S.C. § 2633(a), which is the very statute under which Plaintiffs have attempted to bring this action. This act is commonly referred to as the "Public Utility Regulatory Policies Act of 1978", (hereinafter PURPA) 16 U.S.C. §§ 2601 et seq. The Act contains four subchapters. Subchapter III "Intervention and Judicial Review", containing §§ 2631-2634, is the section ...


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