Arsenault v. City of Peabody

Massachusetts Appeals Court

Arsenault v. City of Peabody

378 N.E.2d 706, 6 Mass. App. Ct. 907

CourtMassachusetts Appeals Court

DecidedJuly 25, 1978

StatusPublished

Cited by1 cases

This text of 378 N.E.2d 706 (Arsenault v. City of Peabody) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arsenault v. City of Peabody, 378 N.E.2d 706, 6 Mass. App. Ct. 907 (Mass. Ct. App. 1978).

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Opinion

In view of the plaintiffs’ concession (contrary to the position originally taken by them in the Superior Court) that G. L. c. 164, § 94G, has no application to a municipal power plant such as that operated by the defendant (see Gas & Elec. Commrs. of Middleborough v. Department of Pub. Util., 363 Mass. 433, 437-438 [1973]), the only remaining legal issue raised by these cases appears to be whether the defendant’s use of a fuel adjustment clause, pursuant to which the unit cost of electricity may fluctuate (and has fluctuated) from month to month with fluctuations in the cost of fuel used in the production of electricity sold to customers, violates the provisions of G. L. c. 164, § 58, as amended by St. 1964, c. 401, which require that changes in the "fixed schedules of prices for gas and electricity” furnished by a municipality shall not occur more often than once in three months, shall take effect on the first day of a month, and shall first be advertised in a newspaper published in the municipality. On the authority of Consumers Organization for Fair Energy Equality v. Department of Pub. Util., 368 Mass. 599, 605-608 (1975), we hold that it does not. Several other issues which have been tentatively raised at various stages in these proceedings have been waived, either in this court or in the Superior Court, or depend on facts not established by the records in these cases.

Judgments affirmed.

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In view of the plaintiffs’ concession (contrary to the position originally taken by them in the Superior Court) that G. L. c. 164, § 94G, has no application to a municipal power plant such as that operated by the defendant (see Gas & Elec. Commrs. of Middleborough v. Department of Pub. Util., 363 Mass. 433, 437-438 [1973]), the only remaining legal issue raised by these cases appears to be whether the defendant’s use of a fuel adjustment clause, pursuant to which the unit cost of electricity may fluctuate (and has fluctuated) from month to month with fluctuations in the cost of fuel used in the production of electricity sold to customers, violates the provisions of G. L. c. 164, § 58, as amended by St. 1964, c. 401, which require that changes in the "fixed schedules of prices for gas and electricity” furnished by a municipality shall not occur more often than once in three months, shall take effect on the first day of a month, and shall first be advertised in a newspaper published in the municipality. On the authority of Consumers Organization for Fair Energy Equality v. Department of Pub. Util., 368 Mass. 599, 605-608 (1975), we hold that it does not. Several other issues which have been tentatively raised at various stages in these proceedings have been waived, either in this court or in the Superior Court, or depend on facts not established by the records in these cases.

Judgments affirmed.

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Bluebook (online)

378 N.E.2d 706, 6 Mass. App. Ct. 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arsenault-v-city-of-peabody-massappct-1978.

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