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ALLEGHENY LUDLUM STEEL CORPORATION v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (07/13/82)

decided: July 13, 1982.

ALLEGHENY LUDLUM STEEL CORPORATION, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. WEST PENN POWER COMPANY, INTERVENOR. FREEDOM FORGE CORPORATION, T/D/B/A STANDARD STEEL, PETITIONER V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. PENNSYLVANIA ELECTRIC COMPANY, INTERVENOR



Appeals from the Orders of the Pennsylvania Public Utility Commission in cases of Freedom Forge Corporation, t/d/b/a Standard Steel v. Pennsylvania Electric Company, Docket No. M-810294C008 and Allegheny Ludlum Steel Corporation v. West Penn Power Company, Docket No. M-810294C004 and Original Jurisdiction No. 3159 C.D. 1981, in the Commonwealth Court of Pennsylvania in case of Allegheny Ludlum Steel Corporation v. Pennsylvania Public Utility Commission.

COUNSEL

Stephen A. George, with him Leonard J. Marsico, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for petitioners.

James P. Melia, Assistant Counsel, with him Daniel P. Delaney, Special Counsel, and Joseph J. Malatesta, Jr., and Charles F. Hoffman, Chief Counsels, for respondent.

Drew J. Kovalak, with him Thomas K. Henderson and John L. Munsch, for intervenor, West Penn Power Company.

Samuel B. Russell, with him Alan Michael Seltzer, Ryan, Russell & McConaghy, for Amici Curiae, Metropolitan Edison Company and Pennsylvania Electric Company.

President Judge Crumlish and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge Craig.

Author: Craig

[ 67 Pa. Commw. Page 402]

These three consolidated actions involve the central issue of whether Section 1307 of the Public Utility Code,*fn1 the energy cost rate (ECR) adjustment provision, is unconstitutional on the ground that it fails to afford procedural due process.

[ 67 Pa. Commw. Page 403]

Allegheny Ludlum Steel Corporation (Allegheny Ludlum) initiated these proceedings, addressing our

[ 67 Pa. Commw. Page 404]

    original jurisdiction by filing a petition for review in the nature of a complaint for a declaratory judgment

[ 67 Pa. Commw. Page 405]

    that Section 1307 is unconstitutional.*fn2 The Public Utility Commission (PUC) is a respondent and West Penn Power Company (West Penn) is an intervening respondent. Metropolitan Edison Company has filed a brief amicus curiae.

Allegheny Ludlum also filed a precautionary appeal in the event that the matter should be regarded as calling for an appeal from an administrative agency order.*fn3

In addition, we here have a precautionary appeal taken by Freedom Forge Corporation (Freedom Forge) from PUC action, which is identical to that taken by Allegheny Ludlum.*fn4 In that appeal, the PUC is respondent and Pennsylvania Electric Company (Penn Electric) is an intervening respondent.

The history of these actions began on November 20, 1981, when West Penn and Penn Electric (utility companies) proposed to the PUC that they be allowed to

[ 67 Pa. Commw. Page 406]

    increase the ECR component of their rates*fn5 under the provisions of Section 1307, for bills rendered between December 29, 1981 and December 31, 1982. Allegheny Ludlum and Freedom Forge, upon learning of the proposed increase,*fn6 filed complaints and petitions for suspension against the utility companies with the PUC.

On December 18, 1981, the PUC, in accordance with its normal procedures, met to deliberate the proposed ECR increases and adopted a motion allowing the utility companies to increase their ECR. Although the meeting was open to the public, neither the public nor Allegheny Ludlum and Freedom Forge were allowed

[ 67 Pa. Commw. Page 407]

    to address the PUC. Then, on January 4, 1982, the PUC issued a letter informing Allegheny Ludlum and Freedom Forge that initial proceedings approving the 1982 ECR proposals had been terminated and noting ...


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