Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania Public Utility Commission v. Duquesne Light Company, No. R-811470.
E. J. Strassburger, with him Dennis S. Shilobod, Strassburger, McKenna, Messer, Shilobod & Gutnick, for petitioner.
Gary D. Cohen, Assistant Counsel, with him Albert W. Johnson, III, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
Charles E. Thomas, with him Charles E. Thomas, Jr., and Patricia Armstrong, of counsel: Thomas & Thomas, for intervenor, Duquesne Light Company.
President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle and Barry. Opinion by Judge Craig.
[ 78 Pa. Commw. Page 568]
Joseph Horne Co., a ratepayer of Duquesne Light Co., appeals from an order of the Pennsylvania Public Utility Commission, which granted Duquesne, a regulated utility, a rate increase of $64 million. We must determine whether the option order procedure, which the PUC employed here, violates either the Pennsylvania Public Utility Code, 66 Pa. C.S. §§ 101-3315, or the due process clause of the United States or Pennsylvania Constitution.
The utility originally filed Tariff Supplement No. 49 with the PUC, requesting a general rate increase in excess of $100 million. The PUC entered an order which suspended the effectiveness of the supplement pending investigation and offered the utility the option of withdrawing Supplement No. 49 and filing a new supplement requesting no more than $64,237,000. The order further provided that, if the utility filed the second supplement, the PUC would permit the lesser increase to become effective immediately, subject to investigation and possible refund.*fn1 The order also provided that any complaints filed against Supplement No. 49 would be deemed filed against the second supplement.
[ 78 Pa. Commw. Page 569]
Electing to exercise its option, the utility filed Tariff Supplement No. 52 requesting an increase of $64,192,105 which the PUC accepted according to the provisions of its earlier order. Following investigation, the PUC found the rates proposed in Supplement No. 52 were just and reasonable and entered an order giving final approval to those rates.*fn2
1. The Public Utility Code
Horne contends that the PUC's option order procedure violated the Public Utility Code by improperly establishing a temporary rate. The Code provides, Horne argues, only three types of rate changes: (1) a general rate increase, 66 Pa. C.S. § 1308(d), (2) extraordinary rate relief, 66 Pa. C.S. § 1308(e), and (3) a temporary rate increase, 66 Pa. C.S. § 1310. Because the PUC's procedure did not fully comply with the requirements of any of those three alternatives, Horne contends that the procedure was an invalid attempt to effect a temporary rate increase.
Horne's approach overlooks the plain language of 66 Pa. C.S. § 1308(d), which provides that whenever a utility files a tariff supplement for a general rate increase, the PUC may "at any time by vote of a majority of the members of the commission . . ., permit such tariff to become ...