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BELL TELEPHONE COMPANY PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (11/05/82)

decided: November 5, 1982.

THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. BUSINESS USERS' GROUP AND WESTINGHOUSE ELECTRIC CORPORATION ET AL., INTERVENORS



Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Pennsylvania Public Utility Commission v. The Bell Telephone Company of Pennsylvania, No. R-80061235.

COUNSEL

Irving R. Segal, with him, Gerard J. St. John, Schnader, Harrison, Segal & Lewis, Judith N. Dean, John P. Fons, and Raymond F. Scully, for petitioner.

Bohdan R. Pankiw, Assistant Counsel, with him, Steven A. McClaren, Deputy Chief Counsel, and Joseph J. Malatesta, Jr., Chief Counsel, for respondent.

Daniel Clearfield, Assistant Consumer Advocate, with him, Andrew M. Hermann, Legal Assistant, and Walter W. Cohen, Consumer Advocate, for intervenor, Consumer Advocate of Pennsylvania.

Selma A. Aloff, with her Jack J. Aloff, for intervenors.

Judges Rogers, Williams, Jr., and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 69 Pa. Commw. Page 555]

We are required by this appeal to decide whether the Pennsylvania Public Utility Commission may lawfully,

[ 69 Pa. Commw. Page 556]

    after making a final order and decision granting in part a general rate increase and ordering the filing of revised tariffs, suspend the effective date for the application of the revised tariffs to the date of filing of the revised tariffs when that date is more than nine months after the filing for the general rate increase. The issue seems not to have been previously addressed by Pennsylvania Courts. The decision requires us to construe Section 1308(d) of the Public Utility Code, 66 Pa. C.S. ยง 1308(d), which is pertinently as follows:

General rate increases. -- Whenever there is filed with the commission by any public utility . . . any tariff stating a new rate which constitutes a general rate increase, the commission shall promptly enter into an investigation and analysis of said tariff filing and may by order setting forth its reasons therefor, upon complaint or upon its own motion, upon reasonable notice, enter upon a hearing concerning the lawfulness of such rate, and the commission may, at any time by vote of a majority of the members of the commission serving in accordance with law, permit such tariff to become effective, except that absent such order such tariff shall be suspended for a period not to exceed seven months from the time such rate would otherwise become effective. Before the expiration of such seven-month period a majority of the members of the commission serving in accordance with law, acting unanimously, shall make a final decision and order, setting forth its reasons therefor, granting or denying, in whole or in part, the general rate increase requested. If, however, such an order has not been made at the expiration of such seven-month period, the proposed general rate increase shall go into effect at the end of such period, but the commission

[ 69 Pa. Commw. Page 557]

    may by order require the interested public utility to refund, in accordance with section 1312 (relating to refunds), to the persons in whose behalf such amounts were paid, such portion of such increased rates as by its decision shall be found not justified, plus interest, . . . The rate in force when the tariff stating such new rate was filed shall continue in force during the period of suspension unless the commission shall grant extraordinary rate relief as prescribed in subsection (e). The commission shall consider the effect of such suspension in finally determining and prescribing the rates to be thereafter charged and collected by such public utility except that the commission shall have no authority to prescribe, determine or fix, at any time, during the pendency of a general rate increase proceeding or prior to a final determination of a general rate increase request, temporary rates as provided in section 1310, which rates may provide retroactive increases through recoupment. As used in this part general rate increase means a tariff filing which affects more than 5% of the customers and amounts to in excess of 3% of the total gross annual intrastate operating revenues of the public utility.

The pertinent facts are undisputed. On July 25, 1980, Bell Telephone filed with the Commission revised tariffs designed to increase its annual operating revenues by approximately $237 million. These revised tariffs were intended by Bell to become effective sixty days after their filing, that is, on September 23, 1980. On September 18, 1980, the Commission ordered an investigation concerning the proposed tariffs ...


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