Appeal from the Order of the Pennsylvania Public Utility Commission, in the case of George Cup, Mr. & Mrs. Mike Parimuha, James & Rose Marie Fellin, Dominic & Genevieve Paparella, Earl L. Seskey, William L. & Patricia A. Rieg, William J. Coffey, Mercer County Commissioners v. Lake Latonka Water Company, Docket Nos. R-842577C001, R-842577C002, R-842577C003, C-850544, C-844165, C-844172, C-844174, C-844201.
John R. Luke, with him, William D. Coholan, Grogan, Graffam, McGinley & Lucchino, P.C., for petitioners.
Kathryn G. Sophy, Assistant Counsel, with her, Bohdan R. Pankiw, Deputy Chief Counsel, and Daniel P. Delaney, Chief Counsel, for respondent.
D. Mark Thomas, with him, Patricia Armstrong, for Lake Latonka Water Company, intervenor.
Judges Craig, Doyle, Barry, Colins, Palladino and Smith. Opinion by Judge Colins. Judge McGinley did not participate in the decision of this case.
[ 124 Pa. Commw. Page 292]
George Cup and various other property owners (petitioners)*fn1 in the Lake Latonka resort community petition
[ 124 Pa. Commw. Page 293]
for review of an order of the Pennsylvania Public Utility Commission (Commission) entered January 28, 1988, which dismissed the complaints against the rate structure of the Lake Latonka Water Company (Company).*fn2 We vacate and remand.
Lake Latonka resort community is comprised of 1,540 building lots of which 355 contain structures. The current owners of the Company are Walter and Joan Dluback who purchased the utility in 1969 and upgraded the water system. Water service is now available for both the developed, as well as the undeveloped lots. When the Dlubacks purchased the Company, they continued to charge a customary $5.00 per month fee to owners of lots without structures. This dispute arose when the Dlubacks began to charge $5.00 per month for each undeveloped lot as opposed to $5.00 per month for each owner of undeveloped lots. The rate for lots with structures is $8.10 per month. Petitioners in this matter are all owners of numerous undeveloped lots and sought relief from the imposition of the per lot charges.
The petitioners filed an action in the Court of Common Pleas of Mercer County which, on January 25, 1982, and March 1, 1982, ruled that the Company was precluded from collecting the $5.00 per undeveloped lot charge. The trial court based its decision on the language in the petitioners' deeds, as well as the Company's tariff language. On December 2, 1983, the Superior Court, in a per curiam order,*fn3 affirmed the trial court's decision that the deed language and the Company's tariff did not provide for a ready to serve charge.
[ 124 Pa. Commw. Page 294]
Prior to the Superior Court's decision, the Company had filed with the Commission Supplement No. 7 to its tariff proposing an almost 82% increase in rates which would have generated over $75,000.00 in additional revenue. The Commission denied this increase on December 10, 1982, but in an option order suggested that the Company submit an alternate tariff supplement which would increase revenues by only ...