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OHIO EDISON COMPANY v. COMMONWEALTH PENNSYLVANIA (12/10/82)

decided: December 10, 1982.

OHIO EDISON COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. PENNSYLVANIA GAS AND WATER COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. PENNSYLVANIA POWER & LIGHT COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. UGI CORPORATION, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. PHILADELPHIA ELECTRIC COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. PENNSYLVANIA POWER COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. DELMARVA POWER & LIGHT COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, HARVEY BARTLE, ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, HOWARD A. COHEN, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS. PENNSYLVANIA ELECTRIC COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. METROPOLITAN EDISON COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. PUBLIC SERVICE ELECTRIC & GAS COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. JERSEY CENTRAL POWER & LIGHT COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. ATLANTIC CITY ELECTRIC COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. ALLEGHENY COUNTY STEAM HEATING COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. DUQUESNE LIGHT COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeals from the Department of Revenue in the cases of Ohio Edison Company v. Commonwealth of Pennsylvania; Pennsylvania Gas and Water Company v. Commonwealth of Pennsylvania; Pennsylvania Power & Light Company v. Commonwealth of Pennsylvania; UGI Corporation v. Commonwealth of Pennsylvania; Philadelphia Electric Company v. Commonwealth of Pennsylvania; Pennsylvania Power Company v. Commonwealth of Pennsylvania; Delmarva Power & Light Company v. Commonwealth of Pennsylvania, Harvey Bartle, Attorney General of the Commonwealth of Pennsylvania, Howard A. Cohen, Secretary of the Commonwealth of Pennsylvania; Pennsylvania Electric Company v. Commonwealth of Pennsylvania; Metropolitan Edison Company v. Commonwealth of Pennsylvania; Public Service Electric & Gas Company v. Commonwealth of Pennsylvania; Jersey Central Power & Light Company v. Commonwealth of Pennsylvania; Atlantic City Electric Company v. Commonwealth of Pennsylvania; Allegheny County Steam Heating Company v. Commonwealth of Pennsylvania; and Duquesne Light Company v. Commonwealth of Pennsylvania.

COUNSEL

Albert J. Tomalis, Jr., Keefer, Wood, Allen and Rahal, for petitioners, Ohio Edison Company, Pennsylvania Gas and Water Company, Pennsylvania Power Company, Pennsylvania Power and Light Company, UGI Corporation, and Philadelphia Electric Company.

Robert R. Batt, with him Bonnie S. Brier, Ballard, Spahr, Andrews and Ingersoll, for petitioner, Delmarva Power & Light Company.

Harry J. Rubin, Krekstein, Rubin and Lasday, for petitioners, Atlantic City Electric Company, Jersey Central Power & Light Company, Metropolitan Edison Company, Pennsylvania Electric Company, and Public Service Electric and Gas Company.

Edward T. Baker, Reed, Smith, Shaw & McClay, for petitioners, Allegheny County Steam Heating Company and Duquesne Light Company.

Vincent J. Dopko, Deputy Attorney General, for respondent, Commonwealth of Pennsylvania.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, MacPhail and Palladino. Opinion by President Judge Crumlish, Jr. Judge Mencer and Palladino did not participate in the decision in this case. Judge MacPhail concurs in the result only. Concurring Opinion by Judge Blatt.

Author: Crumlish

[ 70 Pa. Commw. Page 347]

Fourteen public utility companies*fn1 have appealed from a "Notice and Certification" issued by the Secretary of Revenue. One company*fn2 has, in the alternative, sought review in our original jurisdiction. We deny the Commonwealth's motions to quash and sustain the preliminary objections directed to the petition in our original jurisdiction.*fn3

In response to our Supreme Court's decision in Commonwealth v. Philadelphia Electric Co., 472 Pa. 530, 372 A.2d 815 (1977), which concluded that certain previously-taxed realty of the utility companies was exempt from taxation, the utility companies filed numerous petitions for refund. The legislature then

[ 70 Pa. Commw. Page 348]

    enacted Section 1103-A of the Public Utility Realty Tax Act (PURTA).*fn4 This Section provides in pertinent part:

(d) On or before the first day of September, 1980, the department shall ascertain the total amount of all moneys refunded or credited to public utilities as a result of petitions for refund arising out of or supported by the interpretation of the definition of "utility realty" . . . as construed by the decision of the Supreme Court . . . together with the amount of potential refunds sought by public utilities in timely petitions which are pending before the board of finance and revenue arising out of or supported by said decision. Should the surtax imposed by this section produce an amount of revenue in excess of the total obligation of the Commonwealth ascertained in the manner herein stated, the Department of Revenue shall determine the nearest millage rate calculated to product [sic] the amount of said obligations, and shall reduce and recalculate the surtax paid the said utilities ...


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