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DAVID M. BARASCH v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (03/31/88)

decided: March 31, 1988.

DAVID M. BARASCH, CONSUMER ADVOCATE, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. UNIVERSITY OF PENNSYLVANIA/UTILITY USERS COMMITTEE, INC., PETITIONER V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. PHILADELPHIA ELECTRIC COMPANY, PETITIONER V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeals from the Order of the Pennsylvania Public Utility Commission in the case of Pennsylvania Public Utility Commission, et al. v. Philadelphia Electric Company, No. R-850152, dated June 27, 1986.

COUNSEL

Scott J. Rubin, Assistant Consumer Advocate, with him, Irwin A. Popowsky, Assistant Consumer Advocate, David Wersan, Assistant Consumer Advocate, and David M. Barasch, Consumer Advocate, for petitioner, David M. Barasch, Consumer Advocate.

Larry B. Selkowitz, with him, Mark P. Widoff, Widoff, Reager, Selkowitz & Adler, P.C., for petitioner, University of Pennsylvania/Utility Users Committee, Inc.

Robert H. Young, with him, Jay H. Calvert, Jr., John F. Stillmun, III, Thomas T. Loder, Walter R. Hall, II, Jack E. Jarrett, and Michael A. McGrail, for petitioner/intervenor, Philadelphia Electric Company.

Bohdan R. Pankiw, Deputy Chief Counsel, with him, Louis G. Cocheres, Assistant Counsel, and Daniel P. Delaney, Chief Counsel, for respondent, Pennsylvania Public Utility Commission.

David M. Kleppinger, with him, Richard S. Kahlbaugh, McNees, Wallace & Nurick, for intervenor, Philadelphia Area Industrial Energy Users Group.

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

Author: Palladino

[ 115 Pa. Commw. Page 150]

Appeals from an order of the Pennsylvania Public Utility Commission (PUC) entered on June 27, 1986 have been consolidated and are presently before us for disposition. In 2248 C.D. 1986 and 2269 C.D. 1986, David M. Barasch, Consumer Advocate, hereinafter the Office of Consumer Advocate (OCA), and University of Pennsylvania, Utility Users Committee (UUC/UP) have petitioned for review of the PUC's June 27, 1986 order. Also, Philadelphia Area Industrial Energy Users Group (PAIEUG) and Philadelphia Electric Company (PECO) have filed briefs as intervenors. In 2279 C.D. 1986, PECO has petitioned for review of the PUC's June 27 order, and OCA has filed a brief as an intervenor.

All of the present appeals stem from the PUC's resolution of PECO's request for a rate increase. On September 15, 1985, PECO filed supplement No. 15, which was designed to produce an annual base rate increase of $681.8 million.*fn1 The PUC, by order entered November 1, 1985, allowed the supplement to be suspended by operation of law until June 27, 1986. The PUC then initiated an investigation into the lawfulness, justness and reasonableness of the proposed rates. The case was assigned to an administrative law judge (ALJ).

The ALJ held over thirty hearings, during which the parties presented voluminous testimony and evidence. On May 13, 1986, the ALJ issued his recommended decision. Exceptions were filed to the ALJ's opinion, and on June 27, 1986, the PUC entered its order, supplemented

[ 115 Pa. Commw. Page 151]

    with a lengthy opinion,*fn2 disposing of the exceptions. The June 27, 1986 order is as follows:

IT IS ORDERED:

1. That Philadelphia Electric Company not place into effect the rates contained in Supplement No. 15 to its Tariff Electric-Pa. P.U.C. No. 26, the same having been found to be unjust, unreasonable and, therefore, unlawful.

2. That Philadelphia Electric Company is hereby authorized to file tariffs or tariff supplements containing rates, provisions, rules and regulations, consistent with our findings herein, designed to produce annual operating electric revenues of not in excess of $2,852,071,000, exclusive of revenues to be derived from the State Tax Adjustment Surcharge revenues; provided however, that the $350,797,000 annual revenue increase herein authorized must be phased-in over a three year period, with deferred revenues being recovered in the fourth, fifth and sixth year.

3. That said tariffs or tariff supplements may be filed upon less than statutory notice, and, pursuant to the provisions of 52 Pa. Code § 3.32(b), the tariffs or tariff supplements may be filed to be effective for service rendered on and after the date of entry of this Opinion and Order.

4. That the tax surcharge shall be computed in accordance with the State Tax Adjustment Surcharge Order of March 10, 1970, as revised.

5. That Philadelphia Electric Company shall file detailed calculations with the tariff filing which shall demonstrate to the Commission's

[ 115 Pa. Commw. Page 152]

    satisfaction that the filed rates comply with this Opinion and Order.

6. That Philadelphia Electric Company shall comply with all other directives contained in this Opinion and Order which are not the subject of an individual directive in the proceeding Ordering Paragraphs, as fully as if they were the subject of a specific Ordering Paragraph.

7. That except as herein granted, the exceptions of all parties to the Recommended Decision are denied.

8. That the several complaints filed by various parties to this proceeding, including those which were consolidated with Docket No. R-850152, are granted or denied consistent with this Opinion and Order.

9. That except as herein modified, the Recommended Decision of Administrative Law Judge Matuschak is adopted as the decision of this Commission.

10. That upon the filing of tariff revisions acceptable to the Commission as being in compliance with this Opinion and Order and upon Commission approval of the tariff revisions, the inquiry and investigation at Docket No. R-850152, et al., shall be terminated and the record marked closed.

Pennsylvania Public Utility Commission v. Philadelphia Electric Company, 61 Pa. PUC 589, 685-86 (1986).

Following issuance of the decision, numerous petitions for reconsideration were filed. OCA filed such a petition on June 27, 1986, asserting that the decision was erroneous because it did not find that PECO created excess generating capacity by placing into service the Limerick I nuclear generating station. On July 10, 1986, OCA filed a supplemental petition for reconsideration,

[ 115 Pa. Commw. Page 153]

    asserting that § 1323 of the Public Utility Code*fn3 (Code), enacted to become effective on July 10, 1986, was now applicable to the proceedings, and required the PUC to review, in light of the new section,*fn4 the lack of a finding that PECO had excess generating capacity as a result of Limerick I. On July 15, 1986, the Governor's Energy Council (GEC)*fn5 filed a petition for reconsideration and on July 16, 1986, UUC/UP filed a supplemental petition for reconsideration, with both the GEC and UUC/UP asserting § 1323 should be applied to the proceedings.

[ 115 Pa. Commw. Page 154]

By order entered July 25, 1986, the PUC denied all petitions for reconsideration of its June 27, 1986 order. Appeal to this court followed. We shall address the issues raised in 2248 C.D. 1986 and 2269 C.D. 1986 together, as they are sufficiently similar to warrant such treatment. Resolution of the issues raised by PECO in 2279 C.D. 1986 ...


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