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DAVID M. BARASCH v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/26/87)

decided: June 26, 1987.

DAVID M. BARASCH, CONSUMER ADVOCATE, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission, in case of Pennsylvania Public Utility Commission v. The Bell Telephone Company of Pennsylvania, No. R-842779.

COUNSEL

Daniel Clearfield, Assistant Consumer Advocate, with him, David M. Barasch, Consumer Advocate, for petitioner.

Bohdan Pankiw, Assistant Counsel, with him, Daniel P. Delaney, Deputy Chief Counsel, John G. Alford, Acting Chief Counsel, Albert W. Johnson, III, Deputy Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.

Thomas L. Welch, with him, Daniel E. Monagle, for intervenor, The Bell Telephone Company of Pennsylvania.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 107 Pa. Commw. Page 123]

David Barasch, Consumer Advocate (Barasch), appeals that portion of a Pennsylvania Public Utility Commission (PUC) order permitting Bell Telephone Company of Pennsylvania (Bell) to recover approximately $1,200,000 in amortization expenses pursuant to its January 22, 1985, rate filing. Bell has intervened on the PUC's behalf. We vacate and remand.

[ 107 Pa. Commw. Page 124]

Recently, in Bell Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 105 Pa. Commonwealth Ct. 286, 524 A.2d 1009 (1987) (Bell), this Court reviewed Bell's March 29, 1983 rate filing and affirmed a PUC determination denying Bell's application to recover identical amortization expenses. The requested recoupment is associated with customer premises equipment (CPE) which was transferred to an AT&T subsidiary pursuant to the reorganization of the telephone industry.*fn1 The appeal presently before this Court involves the PUC's overruling of its prior determination made before our decision in Bell was filed.

Our scope of review of the instant appeal is limited to determining whether the PUC violated constitutional rights, committed an error of law, or made findings of fact that are not supported by substantial evidence. Green v. Pennsylvania Public Utility Commission, 81 Pa. Commonwealth Ct. 55, 473 A.2d 209 (1984), aff'd sub nom. Barasch v. Pennsylvania Public Utility Commission, 507 Pa. 430, 490 A.2d 806 (1985).

Barasch contends that the PUC's abrupt turnabout from its previous determination without any new facts or a change in the law must be reversed if the integrity and fairness of the administrative review process is to be maintained. The PUC and Bell maintain that the Commission has broad discretion and permissibly overruled its previous decision in accordance with UGI Corp. v. Pennsylvania Public Utility Commission, 49 Pa. Commonwealth Ct. 69, 410 A.2d 923 (1980) (disallowance of a previously authorized expense constitutes impermissible retroactive ratemaking and results in an unconstitutional confiscation).

[ 107 Pa. Commw. Page 125]

In our previous disposition of this issue in ...


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