Allegheny Ludlum Corp. v. Municipal Authority of Westmoreland County

659 A.2d 20, 1995 Pa. Commw. LEXIS 224
CourtCommonwealth Court of Pennsylvania
DecidedMay 11, 1995
StatusPublished
Cited by12 cases

This text of 659 A.2d 20 (Allegheny Ludlum Corp. v. Municipal Authority of Westmoreland County) 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
Allegheny Ludlum Corp. v. Municipal Authority of Westmoreland County, 659 A.2d 20, 1995 Pa. Commw. LEXIS 224 (Pa. Ct. App. 1995).

Opinion

PELLEGRINI, Judge.

Allegheny Ludlum Corporation (Allegheny Ludlum) appeals an order of the Court of Common Pleas of Allegheny County (trial court) denying its request for a declaratory judgment against the Municipal Authority of Westmoreland County (Authority) after the Authority increased its rates for the purchase of untreated water.

On May 10, 1950, Allegheny Ludlum entered into a contract with the Authority to purchase untreated water for its steel manufacturing plant in West Leechburg, West-moreland County. The water was primarily to be used for cooling equipment and materials. The contract, which commenced on February 28, 1952, ran for twenty years with a twenty year extension. In 1958, the contract was amended to include the purchase of water by Allegheny Ludlum for its Bagdad plant in Armstrong County.1 The rate that Allegheny Ludlum paid to the Authority for untreated water during the forty years that the contract was in effect was approximately $0,044 cents per thousand gallons of water.2 On average, Allegheny Ludlum consumed 11 million gallons of water per day between the two plants. On February 28, 1992, the contract expired and the two parties attempted without success to negotiate rates for the purchase of water for another contract based on a reduction in consumption to approximately 6.5 million gallons of water per day.

Because the parties were unsuccessful in their negotiations, the Authority adopted the following rate scale effective April 1,1992 for Allegheny Ludlum’s purchase of untreated water based on a revenue requirement of $600,000:

Price per Quarter Allowance 3
36.83 cents/thousand 720,000,000 gallons
30.81 cents/thousand 1,440,000,000 gallons
24.69 cents/thousand 2,160,000,000 gallons
18.46 cents/thousand Over 2,160,000,000 gallons

Allegheny Ludlum filed a complaint with the trial court pursuant to Section 4 of the Municipality Authorities Act of 19454 alleging that the Authority had proposed rates that were unreasonable, arbitrary and bore no relationship to costs incurred by the Authority on behalf of Allegheny Ludlum and seeking a declaratory judgment. It also asked [24]*24the trial court to declare what was a reasonable rate for the service provided to it by the Authority.

Hearings were held on six different occasions.5 Having the burden of proving that the Authority abused its discretion in the rate making process by assessing it an unreasonable rate,6 Allegheny Ludlum first offered the expert testimony of Kalbarczyk, who was affiliated with Utility Rate Resources and was experienced in the areas of utility regulation and accounting. He testified that he performed a cost of service analysis to determine the Authority’s revenue requirement and to see if the proposed rate was reasonable. He stated that based on his calculation, the Authority’s proposed revenue requirement was not $600,000 as the Authority determined, but instead was $410,-493 based on various allocation factors7 that he had considered.8 He specified that he did not include costs for pumping because the water was gravity pulled or costs for purification because the water was untreated. He concluded that based on his allocation factors, $0.17 per thousand gallons was a reasonable rate for Allegheny Ludlum to pay for untreated water.

To support its rates, the Authority offered the testimony of Christopher H. Kerr (Kerr), the Resident Manager of the Authority, who developed the rates that Allegheny Ludlum was contesting. He stated the water rates for Allegheny Ludlum were based on a cost of $600,000 to provide service to Allegheny Ludlum, and the $600,000 figure was caleu-lated based on historical expenses of the Authority including:

• labor costs
• treatment costs
• line repair costs
• cost of renovating intake building
• cost of cleaning screens at the intake
• costs associated with line inspection
• costs associated with daily water inspection
• costs associated with treatment of water going into primary reservoir
• costs associated with reading meter
• costs associated with calibrating meter
• costs associated with office and clerical help related to billing
• costs associated with any paperwork

Kerr also testified that a cost he considered in determining the $600,000 revenue requirement was the amount associated with Allegheny Ludlum’s high volumes of water usage that left less water available to potable water users. Kerr stated that he did not know the exact costs associated with each of those expenses, with the exception of the cost of the line repair being $220,000 in one particular year, and the cost of the renovation of the intake building being $600,000 alone with 45% of that cost allocated to Allegheny Lud-lum. However, he did state that while he had no documents reflecting mathematical calculations of those factors, he had performed calculations relying on items such as the Authority’s budgets and general ledgers.

[25]*25The Authority also offered into evidence a cost analysis report that had been prepared by Paul J. Cumiskey (Cumiskey) of Coopers & Lybrand, certified public accountants, that supported Kerr’s determination that the Authority had a cost of service revenue requirement of $600,000 for Allegheny Ludlum. Cu-miskey, an expert in the field of utility financial analysis rate setting and cost of service analyses, testified as to how those figures were calculated. He explained that those numbers were arrived at by determining the actual cost to the Authority for providing untreated water to Allegheny Ludlum. He further explained that the cost of service analysis was done to certify that the revenue requirement amount that the Authority used in establishing the rate was reasonable.9 As a result of their study, Coopers & Lybrand calculated that the Authority had a $643,268 revenue requirement resulting in a rate to Allegheny Ludlum of $0.2710 per thousand gallons of water based on an annual consumption of 2.4 billion gallons.11

Cumiskey also disputed Kalbarczyk’s cost of service analysis because it showed an insufficient understanding of the Authority’s business to develop allocation factors and much of his analysis was irrelevant to the case at hand.12 He also testified that Kal-barczyk’s study did not allocate costs for service to Allegheny Ludlum attributable to its pumping and purification operation, even though those operations had costs attributable to Allegheny Ludlum within them.13 He noted that Kalbarczyk should have specifically identified actual costs as he did rather than use allocation factors. He concluded that he did not think the revenue requirements that were computed by Kalbarczyk or the rate that was set were reasonable.

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Bluebook (online)
659 A.2d 20, 1995 Pa. Commw. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allegheny-ludlum-corp-v-municipal-authority-of-westmoreland-county-pacommwct-1995.