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D'IGNAZIO'S TOWNE HOUSE v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/27/85)

decided: June 27, 1985.

D'IGNAZIO'S TOWNE HOUSE, INC., PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Petition of D'Ignazio's Towne House for an exemption from the Commission's outdoor gas light ban, No. P-820333.

COUNSEL

Barry Gross, for petitioner.

Mark C. Morrow, Assistant Counsel, with him, Larry Gesoff, Assistant Counsel, Louise Russell Knight, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.

President Judge Crumlish, Jr., and Judges Williams, Jr., and Colins, sitting as a panel of three. President Judge Crumlish, Jr., and Judges Rogers, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Colins. Judge MacPhail and Judge Palladino dissent.

Author: Colins

[ 90 Pa. Commw. Page 309]

This is an appeal from the Public Utility Commission's (Commission) order requiring that D'Ignazio's Towne House, Inc. (petitioner) convert 21 existing natural gas lights which illuminate four heavily used city blocks in the Borough of Media (Media), from natural gas to electricity; or that petitioner terminate illumination of the lights and arrange with Media to assume the responsibility of illuminating this area with electric lights.

The instant controversy arose from a natural gas sales ban imposed by the Commission. The Commission issued the order pursuant to 52 Pa. Code § 59.62(h) which provides: "No jurisdictional gas utility shall supply natural gas for use in outdoor lighting except to residential customers; in the case of municipal outdoor lighting fixtures, such supply shall be terminated January 1, 1982." However, petitioner claims that he is exempted by 52 Pa. Code § 59.62(h)(4) which provides:

Exemption from the ban imposed on this subsection may be granted by the commission upon the petition of any municipality or any commercial customer receiving service to outdoor gas lighting which provides the equivalent of municipal lighting in a locale not served by municipal lighting, upon a showing that the affected fixtures are necessary to protect the safety of persons or property and that their elimination, conversion, or replacement would be unduly burdensome.

Petitioner also claims that the regulation violates his due process and equal protection rights under the Pennsylvania and United States Constitutions. We find that the regulation does not violate petitioner's constitutional rights; however, the Commission did

[ 90 Pa. Commw. Page 310]

    not make necessary findings to support its order refusing an exemption.

Petitioner operates a restaurant and has been lighting four heavily used city blocks in Media for the past thirty years. It provides adequate lighting in the area which helps protect public safety and property. Media has not contributed to the illumination of this four block area which is adjacent to the County courthouse, public transportation facilities, a municipal parking lot, the business district, and a residential area. These lights give an "old fashioned" appearance to the area and are the basis of a substantial advertising campaign undertaken by petitioner.

The Commission denied a petition for exemption pursuant to 52 Pa. Code § 59.62(h)(4) on February 5, 1982, and ordered petitioner to turn off the lights effective May 21, 1982. Petitioner relit these lights the next day because three incidents of vandalism occurred the night before. ...


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