Action Alliance of Senior Citizens of Greater Philadelphia, Inc. v. Philadelphia Gas Commission

406 A.2d 1155, 45 Pa. Commw. 234, 1979 Pa. Commw. LEXIS 1899
CourtCommonwealth Court of Pennsylvania
DecidedAugust 24, 1979
DocketAppeal, No. 1315 C.D. 1978
StatusPublished
Cited by9 cases

This text of 406 A.2d 1155 (Action Alliance of Senior Citizens of Greater Philadelphia, Inc. v. Philadelphia Gas Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Action Alliance of Senior Citizens of Greater Philadelphia, Inc. v. Philadelphia Gas Commission, 406 A.2d 1155, 45 Pa. Commw. 234, 1979 Pa. Commw. LEXIS 1899 (Pa. Ct. App. 1979).

Opinions

Opinion by

Judge Rogers,

Action Alliance of Senior Citizens of Greater Philadelphia, Inc. and the Consumer Education and Pro[236]*236tective Association have appealed from an order of the Court of Common Pleas of Philadelphia County affirming a decision of the Philadelphia Gas Commission approving a rate increase submitted on behalf of the Philadelphia Gas Works by its operator, the Philadelphia Facilities Management Corporation (PFMC).

The Philadelphia Gas Works is a group of real and personal assets owned by the City of Philadelphia used and useful in the provision of gas services to City citizens.

The Philadelphia Gas Commission is an agency of the City of Philadelphia provided for by the Philadelphia Home Rule Charter at 351 Pa. Code §5.5-902. Its members are the City Controller, two persons appointed by City Council and two persons appointed by the Mayor. Its function is to oversee the operation of the Philadelphia Gas Works, including the rates to be charged for gas services.

PFMC is a non-profit corporation organized by the City for the specific purpose of operating the Philadelphia Gas Works.

The Philadelphia City Council by ordinance enacted December 29, 1972 approved an agreement of the same date between the City and PFMC comprehensively governing the operation of the Philadelphia Gas Works. Section VH concerns rates and provides pertinently as follows:

SECTION VII
Gas Rates
1. The rates for gas shall be continued as they exist at the commencement of operations under this Agreement and shall be changed by the Gas Commission when necessary so that they will produce revenues sufficient for the following purposes:
[237]*237(a) To pay all of the costs and expenses of conducting Gas Works enterprise, including, but not limited to:
(i) All expenses of operation and maintenance of the Gas Works
(ii) Charges for depreciation as prescribed in Section IV l.(b).
(iii) Charges for employees’ retirement costs as prescribed in Section IV l.(c).
(iv) A management fee to Company equal to the actual cost to Company of managing the Gas Works but not to exceed $200,000 annually. Gas Works shall make an initial payment to Company in the amount of $25,000 on or before January 1, 1973. Gas Works shall thereafter reimburse Company against vouchers on the first day of each calendar month for monies expended for the operation of the Gas Works in the previous calendar month.
(v) Expenses of the Gas Commission.
(b) To make base payments to the City, as follows:
Calendar Year 1973 Calendar Years Thereafter
February 1 $4,000,000 $4,000,000
March 1 $4,000,000 $4,000,000
April 1 $4,000,000 $4,000,000
May 1 $1,200,000 $3,500,000
Additional payments are to be made at such times as conditions may warrant and as may [238]*238be determined and agreed upon by the Gas Commission and City Council.
(c) To provide appropriations for debt reduction and capital additions not otherwise provided which are determined by the Gas Commission to be reasonable and which are approved by City Council.
(d) To provide reasonable additions to the working capital as may be determined by Company and approved by the Gas Commission.
(c) Anything to the contrary herein contained notwithstanding, the Gas Works, as has been the custom under prior contracts, shall continue to pay out of its revenues all of these expenses set forth in this Subsection VII, and all other expenses necessary and proper to the operation of the Gas Works excepting only the Company’s own personnel and administrative costs which are payable out of the management fee.

We deem it helpful to state at this point that the process of fixing rates described in Section VII — that is, by tailoring them to anticipated need for cash, including the preordained $15,500,000 yearly payment to the City — is called the cash flow method. The principal issue raised by the appellants in this case derives from their contention that there is no authority in Pennsylvania law for fixing utility rates by the cash flow method and that the only lawful method of fixing such rates is the familiar one of “calculating the fair-value of a utility’s property used and useful in public service (termed the ‘rate base’) and multiplying that amount by a percentage figure called ‘ rate of return’ (most frequently determined by reference to the company’s cost of capital).” Keystone Water Company v. Pennsylvania Public Utility Commission, 477 Pa. 594, 607, 385 A.2d 946, 953 (1978). The ap[239]*239pellee, Philadelphia Gas Commission, answers, of course, that the cash flow method described in Section VII of the ordinance/agreement of December 29, 1972 is authorized by law.

In the spring of 1977, PFMC prepared Tariff No. 7 proposing increases in gas rates for the operating year July 1, 1977 to June 30, 1978 in the amount of $10,500,000, an amount which represented a 20.7% increase over existing rates. The major revenue requirements indicating the proposed increase were: (1) a plan to purchase an additional nineteen million gallons of oil as feedstock for manufactured gas, requiring an increase in working capital, and (2) a plan to pay the City of Philadelphia the sum of $7,500,000 during the year in addition to the $15,500,000 due during the year pursuant to Subsection VII(l) (b) of the ordinance/agreement of December 29, 1972. The additional $7,500,000 proposed to be paid to the City in 1977-1978 was a payment on account of a deficiency in the $15,500,000 payment due during the year 1976-1977 but paid only to the extent of $1,500,000.

The Philadelphia Gas Commission conducted hearings on the proposed Tariff and the budget of the Philadelphia Gas Works for 1977-1978 during May of 1977. As a result, it seems, of a letter of the Mayor to the members of the Philadelphia Gas Commission dated May 26, 1977, the Philadelphia Gas Commission approved an increase in rates in the reduced amount of $31,312,000, or 16% over the previously established rates. The amount of revenues needed was arrived at by the cash flow method described in Section VII of the ordinance/agreement of December 29, 1972.

The appellants commenced an action in equity attacking the new rates in the Court of Common Pleas of Philadelphia. On June 23, 1977, the court, apparently finding that notice of the hearings held was inadequate, directed the Philadelphia Gas Commission [240]*240to conduct new hearings. These were held in July 1977 and on July 28 the Philadelphia Gas Commission, as it had before, using the cash flow method, approved a rate increase of $31,312,000 or 16%, to become effective August 1, 1977. The appellants then filed a Petition for Review in the Court of Common Pleas to initiate an appeal pursuant to the Local Agency Law, then the Act of December 2, 1968, P.L. 1133, 53 P.S. §11301 et seq., now found at 2 Pa. C.S.

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406 A.2d 1155, 45 Pa. Commw. 234, 1979 Pa. Commw. LEXIS 1899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/action-alliance-of-senior-citizens-of-greater-philadelphia-inc-v-pacommwct-1979.