Masthope Rapids Property Owners Council v. Pennsylvania Public Utility Commission

581 A.2d 994, 135 Pa. Commw. 437, 1990 Pa. Commw. LEXIS 553
CourtCommonwealth Court of Pennsylvania
DecidedOctober 10, 1990
DocketNos. 955 & 1057 C.D. 1989
StatusPublished
Cited by7 cases

This text of 581 A.2d 994 (Masthope Rapids Property Owners Council 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
Masthope Rapids Property Owners Council v. Pennsylvania Public Utility Commission, 581 A.2d 994, 135 Pa. Commw. 437, 1990 Pa. Commw. LEXIS 553 (Pa. Ct. App. 1990).

Opinion

DOYLE, Judge.

This matter is before the Court en banc following our grant of CS Water and Sewer Associates’ (CS Water) application for reargument in two consolidated appeals previously decided by a panel of this Court, Masthope Rapids Property Owners Council v. Pennsylvania Public Utility Commission (Nos. 955 and 1057 C.D.1989, filed January 12, 1990 slip opinion) (Masthope I). In Masthope I, CS Water and the Masthope Rapids Property Owners Council (Masthope) each filed two separate petitions for review of two [440]*440Public Utility Commission (Commission) orders. The first order, entered on April 25, 1989, permitted CS Water’s proposed rates in a tariff supplement to become effective; in the second order, entered on April 27, 1989,1 the Commission, on its own motion, instituted an investigation into the reasonableness of CS Water’s existing rates. The Commission filed four separate motions to quash the petitions as interlocutory. We consolidated the four appeals and considered them with their corresponding motions to quash.

Following argument we held that the Commission’s approval of CS Water’s rate increase via the April 25 order was invalid under Section 1310 of the Public Utility Code (Code), 66 Pa.C.S. § 1310, as that Section was interpreted by our Supreme Court in Joseph Horne Co. v. Pennsylvania Public Utility Commission, 506 Pa. 475, 485 A.2d 1105 (1984), and that Masthope’s and CS Water’s appeal of that order was not subject to a motion to quash because the April 25 order was final. We therefore denied the Commission’s motions to quash both petitions for review of the April 25 order and we remanded to the Commission for proceedings consistent with the Code as set forth in Horne.2

CS Water petitioned for reargument and contended that in Masthope I we had reached the merits of the petitions for review of the April 25 order when the only issue before us was the motions to quash. We granted reargument to allow CS Water to argue the merits of its position before the Court en banc, and because the Commission advised us that reargument would be appropriate. However, before we address the merits in this matter, we will review the relevant facts. Because the circumstances of this appeal are unchanged from the standpoint of our decision in [441]*441Masthope I, we will adopt the facts which we set forth in that decision as follows:

The genesis of this case lies with CS Water’s May 2, 1988, filing with the Commission of a general rate increase request consisting of proposed Tariff Supplement No. 2 to become effective October 1, 1988 (Supplement No. 2). Supplement No. 2 contained proposed changes in rates calculated to produce $71,940, or 37%, in additional annual revenues alleged by CS Water to be necessary due to increased operating costs, including repayment of principal and interest due on a loan received pursuant to the Water Facilities Restoration Act (Water Act), 32 Pa.C.S. §§ 7501-7518.
On August 17, 1988, Masthope filed a complaint with the Commission by which it questioned the justness and reasonableness of the rates contained in Supplement No. 2, and by an opinion and order adopted September 29, 1988 (entered September 30, 1988), the Commission instituted an investigation on its own motion into the justness and reasonableness of that general rate increase request. The Commission’s order meant that Supplement No. 2 would be suspended by operation of Section 1308(d) of the Code until May 1, 1989, or seven months from the October 1, 1988 date that the new tariff would otherwise have become effective.
On November 2, 1988, CS Water petitioned the Commission for permission to file, on less than sixty days’ notice, proposed Tariff Supplement No. 3 to become effective on December 1, 1988 (Supplement No. 3). Supplement No. 3 contained a proposed “customer charge” calculated to produce $51,410, or 26.9%, in additional annual revenues for the exclusive purpose of recovering the annual principal and interest due on CS Water’s Water Act loan. CS Water further agreed that if the petition were granted, any complaint filed against the new tariff within sixty days of the date of the petition would be treated by CS Water as if the petition had been filed upon sixty days’ notice to the Commission and the complaint had been filed [442]*442within that sixty-day period. Following its petition, on November 8,1988, CS Water filed a prehearing memorandum with respect to the Commission’s investigation of Supplement No. 2, in which it asserted that its need for immediate rate relief prompted the November 2, 1988 petition, and that it would withdraw the general rate increase request contained in Supplement 2 if the Commission approved its petition for Supplement No. 3.
Masthope filed a complaint on November 30, 1988 and alleged that both CS Water’s proposed charges in Supplement No. 3 and existing charges “are or may be unjust or unreasonable” in violation of the Code, Commission regulations and public policy. Thereafter, on December 9, 1988, CS Water filed a notice of withdrawal of proposed Supplement No. 2. On December 13, 1988, CS Water filed a motion to strike, or, in the alternative, an answer to Masthope’s November 30, 1988 complaint, and asserted, inter alia, that Section 7518 of the Water Act, 32 Pa.C.S. § 7518, requires that the Commission provide expedited rate recovery of the annual repayment of principal and interest on the Water Act loan, and that Masthope’s complaint should be stricken as no rate filing was pending before the Commission by virtue of CS Water’s notice of withdrawal of proposed Supplement No. 2.
On December 14, 1988, Masthope filed a motion to dismiss, or, in the alternative, to suspend the general rate request contained in Supplement No. 3. This pleading challenged CS Water’s representation in its November 2, 1988 petition that the exclusive purpose of proposed Supplement No. 3 was to recover the annual repayment costs of the Water Act loan. Masthope instead contended that the proposed tariff was “solely for the purpose of recovering the increased costs associated with a balloon payment” on the loan that financed CS Water’s purchase of its water and sewer facilities from the prior owner, and asserted that CS Water’s proposed tariff filing should be suspended for an investigation where Masthope could pursue all the issues attendant in a general rate increase [443]*443proceeding, i.e., the justness and reasonableness of both existing and proposed rates.
Thereafter, following additional pleading by the parties, an Administrative Law Judge (ALJ) issued a recommended decision approving CS Water’s withdrawal of its general rate increase request contained in Supplement No. 2. By order entered February 1, 1989, the Commission adopted the ALJ’s recommended decision, thereby dismissing Masthope’s complaint and terminating the Commission’s investigation into Supplement No. 2.
No further activity occurred until, by opinion and order entered April 25, 1989, the Commission permitted the customer charge contained in Supplement No. 3 to become effective on April 26, 1989, subject to proceedings on Masthope’s November 30, 1988 complaint.

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Bluebook (online)
581 A.2d 994, 135 Pa. Commw. 437, 1990 Pa. Commw. LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masthope-rapids-property-owners-council-v-pennsylvania-public-utility-pacommwct-1990.