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SME BESSEMER CEMENT v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (05/05/88)

decided: May 5, 1988.

SME BESSEMER CEMENT, INC. AND SME LIMESTONE COMPANY, PETITIONERS
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeals from the orders of the Public Utility Commission, dated October 9, 1986 and October 10, 1986, adopted October 16, 1986 at P-850049.

COUNSEL

Louis Pomerico, Keller, Pomerico, Leymarie & Clark, P.C., for petitioners.

Terrence J. Buda, Assistant Counsel, with him, Will C. Matthews, Deputy Chief Counsel, Daniel P. Delaney, Chief Counsel, for respondent.

Stephen L. Feld, with him, James R. Edgerly, for intervenor, Pennsylvania Power Company.

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

Author: Barry

[ 116 Pa. Commw. Page 14]

SME Bessemer Cement, Inc. and SME Limestone Company (SME) appeal an October 16, 1986 decision of

[ 116 Pa. Commw. Page 15]

    the Pennsylvania Public Utility Commission (Commission) which denied, without a hearing, SME's petition for ex parte emergency relief for a stay or supersedeas from termination of electrical service and for a modification of a previous Commission order.*fn1

For purposes of our review, the entire history of this matter need not be recited. We will center upon the October 16, 1986 Commission order. However, due to the nature of that order and to the elaborate history of the case, some further expounding on the order is necessary.

This controversy is rooted in SME's failure to pay the Pennsylvania Power Company (Penn Power) for electrical services rendered. SME, already suffering from a cash flow problem due to the seasonal nature of its work, was also hindered because it was obligated to make arrearage payments on its debt. Penn Power's problem, of course, arises from SME's failure to pay and the threat of SME stopping business operations should electrical service be terminated. Penn Power was, therefore, forced to accept late payments or no payments should the service be terminated. Throughout the proceedings Penn Power has been willing to accept the late payments. However, SME does not always make these payments and Penn Power was forced to give notice of the termination of the electrical service.

Initially, the parties reached an agreement providing for SME to reduce the debt by making scheduled payments. This agreement also provided, upon SME's default, for posting of a security bond and for three days notice of termination of service. Shortly thereafter, SME did not make a scheduled ...


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