City of Lancaster v. Pennsylvania Public Utility Commission

769 A.2d 567, 2001 Pa. Commw. LEXIS 177
CourtCommonwealth Court of Pennsylvania
DecidedMarch 20, 2001
StatusPublished
Cited by7 cases

This text of 769 A.2d 567 (City of Lancaster v. Pennsylvania Public Utility 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
City of Lancaster v. Pennsylvania Public Utility Commission, 769 A.2d 567, 2001 Pa. Commw. LEXIS 177 (Pa. Ct. App. 2001).

Opinions

COLINS, Judge.

The City of Lancaster (City) petitions for review of the orders respectively entered by the Public Utility Commission (PUC) on September 22, 1999, October 22, 1999, and November 4, 1999, regarding the City’s proposed jurisdictional rate increase of $999,937, representing an 18.8% increase over existing rates for water service provided to customers located outside the City’s municipal boundaries, as presented in the City’s Supplement No. 28 to Tariff Water-Pa. PUC No. 6. Consolidated with the foregoing matter are cross-petitions for review filed by the municipalities of Manheim, Lancaster, East Hempfield, West Lampeter, East Lampeter, Manor, and West Hempfield, and the Leola Sewer Authority (collectively Townships), opposing the PUC’s orders which, the Townships aver, allow the City an excessive rate of return. Also before this Court for disposition are the PUC’s motion to quash the City’s petition for review pursuant to Pa. R.A.P. 1701(b), and the City’s answer thereto.

The background of the City’s petition for review follows. On December 23, 1998, the City filed a proposed rate increase by way of Supplement No. 28 to Tariff Water — Pa. P.U.C. No. 6., which proposed to raise the rates of customers outside the City’s limits by $999,937 or 18.8% over existing rates, while decreasing the rates of customers within the City’s limits by $148,022 or 3.1% below existing rates. On February 11, 1999, the PUC issued an order suspending the implementation of Supplement No. 28 until September 23, 1999, while it investigated said Supplement. Formal complaints against the City’s rate increase proposal were filed respectively by the Office of Consumer Advocate (OCA), the City of Lancaster Users Group, and the Townships.

On May 17, 1999, a hearing was held before an administrative law judge (ALJ), and the evidentiary record was closed on May 26,1999. On July 20,1999, the ALJ’s recommended decision was issued, to which the parties filed exceptions and reply exceptions. Thereafter, on September 22, 1999, the PUC issued an order granting in part and denying in part the City’s exceptions, denying the exceptions of the OCA and the Townships, and modifying the ALJ’s decision by providing: (1) that the City shall not implement the rates contained in its Supplement No. 28; (2) that the City may file tariffs or tariff supplements containing rates, rules, and regulations directed to its Water Fund customers situate outside its municipal borders, with the intention of producing additional annual operating revenues not to exceed $610,350; (3) that the City shall allocate the $610,350 increase in annual operating revenues in percentages as close as possible to those set forth in City Exhibit 1, Volume 1, Schedule K 2, Pro Forma Proposed Percentage as follows: residential customers, 52.55%, commercial customers, 33.57%, and industrial customers, 11.12%; and that rates for bulk water service and for fire protection service shall be those stated in City Exhibit 1. The PUC’s September 22, 1999 order further provided [570]*570that the formal complaints filed in this matter be partially sustained and partially denied to the extent consistent with this order and that the parties’ joint petition for partial settlement of the case be approved. Although the September 22, 1999 order attempted to resolve all of the parties’ respective exceptions, on September 27, 1999, the City filed a petition for a rehearing. On October 22, 1999, the PUC entered an order granting reconsideration pending review on the merits, but on November 4, 1999, the PUC denied the City a rehearing.

The City filed appeals from the PUC’s September 22, October 22, and November 4, 1999 orders. On December 28, 1999, the foregoing respective appeals were consolidated and, along with two cross-appeals filed by the Townships, are now before this Court.1

Procedurally, we first address the PUC’s motion to quash the City’s petition pursuant to Pa. R.A.P. 1701(b) which motion alleges that: (1) Pa. R.A.P 1512(a) provides that a petition for allowance of appeal of a quasijudicial order shall be filed within 30 days; and (2) Pa. R.A.P. 1701(b) provides that an agency entering such an order retains jurisdiction for 30 days after entry to allow for granting reconsideration if requested. The PUC’s motion contends that Pa. R.A.P. 1701(b)(3) provides that an order granting reconsideration, as in the present matter, “renders inoperative any such notice of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order.”

Applying the foregoing to the present matter, the PUC avers that October 22, 1999, the date on which the City filed its petition for review with this Court, was the same date on which the PUC granted a petition filed by the City on September 27, 1999, for reconsideration of the disputed September 22, 1999 PUC order. It is the PUC’s position that because it granted the City reconsideration, the latter’s petition for review should be quashed. In rebuttal, the City argues that, in Westinghouse Electric Corp. v. Pennsylvania Public Utility Commission, 407 A.2d 65 (Pa.Cmwlth.1979), this Court held that Pa. R.A.P. 1701(b)(3) was not intended to render inoperative any issues on appeal that were not the subject of an application for reconsideration. Accordingly, the City argues that one of the critical questions raised in its petition for review, that of determining the appropriate capital structure to be used for setting the City’s water rates, is still a pending issue and that, therefore, the City’s petition for review should not be quashed. Upon consideration, we concur with the City’s argument and deny the PUC’s motion to quash.

Turning now to the merits of the matter subjudice, the City’s appeal challenges the PUC’s orders on the grounds that the latter establish an overall rate of return for a municipal corporation (5.64%) in a manner different than that used for a non-municipal corporation, a practice that the City avers contravenes the Pennsylvania Public Utility Code (Code)2 and judicial precedent. It is the City’s position that both the Code and precedent require that the rate-setting process for a municipal [571]*571public utility and a non-municipal utility be established using similar principles, and that the municipal public utility must be granted a rate of return equivalent to that granted comparable, non-municipal risk companies. The City also argues that the 5.64% overall rate of return authorized by the PUC’s orders is lower than risk-free investment yields and therefore confiscatory, and that said orders improperly regulate the private investor’s return by applying a theoretical tax expense (a tax factor) upon the common equity return. In this regard, the City contends that the PUC’s analysis in arriving at its chosen rate of return was based upon misinformation, erroneous conclusions, and rejection of contrary PUC precedent on the rate-setting issue without any rational basis.

The PUC argues that the City may charge any rate it deems appropriate to its own city residents, but when the City services customers outside its corporate limits, it is subject to the Code, which requires that all rates charged by PUC regulated entities be “just and reasonable.”3 It is the PUC’s position that its September 22, 1999 order was based upon substantial evidence of record and correctly set a fair return on the City’s municipal debt and equity investment.

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Cite This Page — Counsel Stack

Bluebook (online)
769 A.2d 567, 2001 Pa. Commw. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-lancaster-v-pennsylvania-public-utility-commission-pacommwct-2001.