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11/12/97 SIERRA CLUB v. PENNSYLVANIA PUBLIC UTILITY

November 12, 1997

SIERRA CLUB, THE COMMISSION ON ECONOMIC OPPORTUNITY OF LUZERNE COUNTY, AND ERIC JOSEPH EPSTEIN, PETITIONERS
v.
PENNSYLVANIA PUBLIC UTILITY : COMMISSION, RESPONDENT



This Opinion Substituted by the Court for Withdrawn Opinion of July 22, 1996, Previously

Before: Honorable James Gardner Colins, President Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge. Opinion BY Judge Leadbetter. Dissenting Opinion BY Judge Kelley. Concurring And Dissenting Opinion BY Judge Smith. Judge Smith joins in this Dissenting opinion. Judges Kelley and Flaherty joins in this Concurring and Dissenting opinion.

The opinion of the court was delivered by: Leadbetter

OPINION BY JUDGE LEADBETTER

FILED: November 12, 1997

Petitioners Sierra Club, the Commission on Economic Opportunity of Luzerne County and Eric Joseph Epstein were intervenors in a base rate proceeding for Pennsylvania Power & Light Company (PP&L) before the Pennsylvania Public Utility Commission (PUC). They have petitioned for review of the PUC's denial of their request to be provided copies of transcripts of testimony in the rate case at the actual cost of reproduction rather than the rate charged by a court reporting firm with which the PUC has contracted to record and transcribe such testimony. In the alternative, they requested permission to remove transcripts from PUC offices and have them copied commercially. The PUC filed a motion to quash the petition for review, which the court directed to be argued with the merits.

Petitioners question whether PUC hearing transcripts are "public records" under the statute commonly known as the "Right-to-Know Act," Act of June 21, 1957, P.L. 390, as amended, 65 P.S. " 66.1 - 66.4 (Act); whether, in view of PUC requirements that parties cite to the transcript when briefing their cases, the Act requires (a) that the PUC provide citizen-requested copies at a cost based on actual reproduction costs or permission for the citizen to copy; (b) that the PUC may not delegate to a private contractor the setting of terms and conditions of receipt, including barring a purchaser from making further copies; and (c) that the PUC provide copies soon enough for a citizen litigant to use them in the proceeding; and whether the PUC's motion to quash should be dismissed. The PUC counterstates the question on the merits as whether the PUC's regulation providing that transcript copies be obtained through a court reporter for parties in a base rate case is a "reasonable rule" governing the making of copies under the Act.

Testimony in the PP&L rate case generated a transcript in excess of 2,400 pages. Commission regulations provide that the transcript prepared by the Commission's official reporter shall be part of the record and shall be the sole official transcript, 52 Pa. Code ' 5.251(a); that parties relying upon evidence in briefs must make reference to pages of the record or exhibits where the evidence appears, 52 Pa. Code ' 5.501; and that a person desiring a copy of the transcript "may obtain copies from the official reporter upon payment of the fees fixed therefore [sic]." 52 Pa. Code ' 5.254(a).

The PUC contracts with private court reporting firms rather than performing reporting functions itself. Petitioners requested copies of the transcripts and exhibits from the PUC at a cost not to exceed the cost of reproduction, asserting that it had attempted unsuccessfully to negotiate with the court reporting firm to purchase copies at less than the rate per page demanded by the court reporter. *fn1 By letter of June 22, 1995, the Commission's Secretary denied the request, quoting 52 Pa. Code '5.254 and noting also that the Commission's contract with the court reporting firms provides that the Commission will not supply copies to any litigant in a proceeding. Petitioners then filed their petition for review pursuant to ' 4 of the Act, 65 P.S. ' 66.4.1a On February 6, 1996, oral arguments were presented to a three Judge panel of this court. In an opinion by Judge Smith, which was filed on July 22, 1996, the panel, with Judge Rodgers Dissenting, held that the transcripts were "public records" within the meaning of ' 1 of the Act, 65 P.S. ' 66.1(2) and that 52 Pa. Code ' 5.254(a) was invalid under ' 3 of the Act, 65 P.S. ' 66.3. The PUC subsequently filed an application for reargument, which was granted, and on November 29, 1996, an en banc panel of this court heard oral arguments.

I.

The court first addresses the PUC's motion to quash the petition for review, filed pursuant to Pa. R.A.P. 1972(7), which asserts that petitioners are not aggrieved and hence lack standing to pursue this appeal. The PUC maintains that petitioners had access to view the transcripts in the PUC file room during normal business hours, that they were entitled to purchase transcripts from the court reporter and that in this particular case the Administrative Law Judge made his personal copy available. The PUC also asserts that the petition for review is moot because the PP&L rate case has been concluded before the PUC and is on appeal, and petitioners therefore have no litigation need for the transcripts.

The motions provided for by Pa. R.A.P. 1972 all involve Disposition of a case by an appellate court without reaching the merits. They include motions to transfer, to dismiss for want of jurisdiction, to dismiss for mootness and to dismiss for failure to preserve an issue or for other waiver of the right to appeal, as well as "(7) to quash for any other reason appearing on the record." Pa. R.A.P. 1972(7). In the case sub judice, petitioners requested copies of hearing transcripts at reproduction cost or temporary custody of transcripts for the purpose of making their own reproductions. The PUC denied petitioners' specific request; hence, petitioners were "aggrieved" by that denial. Whether petitioners are in fact entitled to have their request granted, or whether the PUC's current practices satisfy the statutory requirements, is the precise issue to be decided upon the merits of this appeal. Consequently, the PUC's motion to quash for lack of standing will be denied.

A motion to dismiss for mootness is provided for by Pa. R.A.P. 1972(4). This court will dismiss an appeal as moot unless an actual case or controversy exists at all stages of the judicial or administrative process. Cytemp Specialty Steel Div., Cyclops Corp. v. Pennsylvania Public Utility Comm'n, 128 Pa. Commw. 349, 563 A.2d 593, 596 (Pa. Commw. 1989). Exceptions to this principle are made where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision. Id.

The present case is technically moot because the petitioners have not intervened in the appeal from the PUC's decision in the underlying rate case and thus no longer have use for a transcript. Nevertheless, the court regards the issue presented here as one likely to be repeated yet evade review, and also as one involving an important public interest. Therefore, we deny the PUC's motion to quash. However, since the PUC stated a colorable argument that the present case is moot, we also deny petitioners' request for an award of attorney's fees relating to the motion.

II.

We now turn to the merits of this appeal. *fn2 Section 1(2) of the Act, in relevant part, defines "public record" as:

Any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public records" . . . shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of ...


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