Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Brockway Glass Company, Inc. v. West Penn Power Company, No. C-80021876.
Edward J. Riehl, with him Robert H. Griswold, McNees, Wallace & Nurick, for petitioner.
Kandace F. Foust, Assistant Counsel, with her Shirley Rae Don, Deputy Chief Counsel and Joseph J. Malatesta, Jr., Chief Counsel, for respondent.
Edward S. Stiteler, for Amicus Curiae, West Penn Power Company.
Judges Blatt, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.
[ 63 Pa. Commw. Page 239]
Brockway Glass Company (Brockway) appeals here from an order of the Pennsylvania Public Utility Commission (PUC) entered October 15, 1980, which adopted the Initial Decision and Ruling on Exceptions of the Administrative Law Judge (ALJ) and dismissed the petitioner's complaint against West Penn Power Company (West Penn). We affirm.
Brockway, an industrial customer of West Penn at several locations, has been taking electric service at its Plant No. 11 in Washington, Pennsylvania since acquisition of that plant in 1964, at which time it succeeded to the then-existing electric service agreement for that plant. Brockway and West Penn subsequently executed three new agreements: on October 10, 1965, September 8, 1967 and May 3, 1974, each of which was based upon a different West Penn rate schedule
[ 63 Pa. Commw. Page 240]
chosen by Brockway with regard to its demand requirements at the time in question. The last agreement, dated May 3, 1974, was computed in accordance with Rate Schedule 47 and provided for 25,000 volt service to a maximum load of 10,000 kilowatts, and a minimum demand of 7,500 kilowatts. This agreement, as did Rate Schedule 47, provided for an initial agreement term of four years, subject to cancellation thereafter upon one-year's written notice by either party. On August 31, 1973 West Penn filed Rate Schedule 47 with the PUC as part of its tariff and refiled it on September 4, 1979.
On or about September 18, 1979,*fn1 Brockway notified West Penn that, due to the termination of operations at Plant No. 11 as of January 1, 1980, the power use at the plant would be drastically reduced and a transfer to a more appropriate rate was therefore requested as of that date. On January 3, 1980, Brockway confirmed the reduction in operations at the plant and again requested transfer to a more suitable rate. West Penn, considering itself bound by the one-year minimum notice provision of its filed tariff and, therefore, unable to effect a change in rate until September 18, 1980, continued to bill Brockway in accordance with Rate Schedule 47. Brockway, however, recomputed the billings for service provided it after January 1, 1980 pursuant to Rate Schedule 30, which it viewed as the rate most beneficial to it under its changed circumstances.
[ 63 Pa. Commw. Page 241]
On February 22, 1980 Brockway filed a complaint with the PUC 1) seeking to have it find that the one-year notice of cancellation requirement in the contract and in Rate Schedule 47 was unjust, unreasonable and unlawful and would result in West Penn's collecting excessive charges from Brockway, and 2) seeking a determination of Brockway's right to have its billing computed under a more beneficial rate in light of the drastic reduction in its demand requirements. After a hearing, at which only Brockway offered evidence, the ALJ found that Brockway had failed to meet its burden of proof and dismissed the complaint. The initial decision was ...