Pennsylvania Petroleum Ass'n v. Pennsylvania Power & Light Co.

377 A.2d 1270, 32 Pa. Commw. 19, 1977 Pa. Commw. LEXIS 1047
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 23, 1977
DocketAppeal, No. 1761 C.D. 1976
StatusPublished
Cited by15 cases

This text of 377 A.2d 1270 (Pennsylvania Petroleum Ass'n v. Pennsylvania Power & Light Co.) 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
Pennsylvania Petroleum Ass'n v. Pennsylvania Power & Light Co., 377 A.2d 1270, 32 Pa. Commw. 19, 1977 Pa. Commw. LEXIS 1047 (Pa. Ct. App. 1977).

Opinions

Opinion by

Judge Blatt,

On March 31, 1975, Pennsylvania Power & Light Co. (PP&L) filed supplement numbers 24 and 25 to its Electric Tariff with the Pennsylvania Public Utility Commission (PUC). These supplements requested increases in the rates charged for electricity and a modification in PP&L’s rate design (i.e., the relationships of rates charged different customer classes). Hearings on the proposed supplements were held in the period between September 1975 and January 1976. Eighty persons filed complaints with the PUC regarding the supplements and participated in varying degrees in the hearings. Among these complainants was the Pennsylvania Petroleum Association (PPA) which presented two witnesses and 12 exhibits. The PUC issued a formal rate order on September 17, 1976, ap[22]*22proving PP&L’s requested supplement No. 25 rate level and substantially approving its requested rate design. This appeal was initiated by a petition for review filed by PPA from the PUC’s order. PP&L has filed a motion to quash, arguing that PPA is not a person aggrieved by the PUC’s order and therefore has no standing to bring this appeal.

Prior to the enactment of the Pennsylvania Rules of Appellate Procedure, Section 1101 of the Public Utility Law1 (Act), permitted appeals from orders of the PUC by “any party to the proceedings affected thereby.” See City of Pittsburgh v. Pennsylvania Public Utility Commission, 3 Pa. Commonwealth Ct. 546, 284 A.2d 808 (1971). This section was suspended by Pa. R.A.P. 5105(c) and subsequently repealed.2 Appeals from PUC orders must now be taken pursuant to the rules of appellate procedure primarily chapter 15, and Pa. R.A.P. 501 defines the necessary interest a party must have to bring an appeal as follows :

Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order . . . may appeal therefrom. (Emphasis added.)

PPA argues initially that the exemption contained in the above rule applies to allow a party who has been “affected,” rather than “aggrieved,” by a PUC order to appeal that order. Simply stated, PPA contends that a recent amendment to Section 1112 of the Act, 66 P.S. §1442, has enlarged the right of appeal from orders of the PUC to include persons “affected” by such orders, which PPA implies is a less stringent [23]*23standard.3 The text of that section, however, does not support PPA’s argument but instead reads as follows with the amended language emphasized and the superseded language bracketed:

Whenever the commission shall make any rule, regulation, finding, determination, or order under the provisions of this act, the same shall be prima facie evidence of the facts found, and shall remain conclusive upon all parties affected thereby, unless set aside, annulled, or modified [in an appeal taken as provided in this act] on judicial review.

We do not believe that this amendment was intended to confer a basis for seeking appellate review. Both the former and the present versions of Section 1112 describe only the weight to be given orders of the PUC when collaterally challenged, and thus prohibit “parties affected” by the order from challenging it other than upon direct judicial review. We believe that the amendment of the section was intended merely to conform the section with the terminology employed in the appellate rules4 and not to enlarge the right to appeal orders of the PUC.

Although undefined in the appellate rules, the concept of “aggrievement” of a party by an order which confers standing on that party to appeal that order has been examined in a long series of cases in this [24]*24Commonwealth. The traditional statement of this concept was repeated by our Supreme Court in Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 191, 346 A.2d 269, 280 (1975):

[The party] must have a direct interest in the subject-matter of the particular litigation, otherwise he can have no standing to appeal. And not only must the party desiring to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial. (Citations omitted.)

Although the requirement that the asserted interest have a pecuniary element has generally been eroded,5 the standing of PPA to bring this appeal remains dependent on whether or not PPA can demonstrate an interest in PP&L’s rates and rate design which is direct, substantial, immediate and not a remote consequence of the PUC’s order. Accord, Snelling v. PennDOT, 27 Pa. Commonwealth Ct. 276, 366 A.2d 1298 (1976); Wilt v. Beal, 26 Pa. Commonwealth Ct. 298, 363 A.2d 876 (1976); Cablevision v. Zoning Hearing Board, 13 Pa. Commonwealth Ct. 232, 320 A.2d 388 (1974).

In its complaint, the initial pleading filed with the PUC, PPA described itself as “a non-profit statewide trade association of retail distributors of number 2 middle distillate fuel oil for residential and commercial space and water heating end-use purposes.” PPA’s interest in the proceedings was stated in the complaint as follows: “[m]any PPA members are competitors of PP&L in residential and commercial [25]*25space and water heating markets and have an interest in the rate schedules proposed by PP&L for residential and commercial classes and subclasses of customers in this proceeding.” The subject matter of the complaint involved the propriety of the proposed and then-existing PP&L rate design which PPA alleged was discriminatory in that the rate charged residential and commercial space and water heating end-users was unreasonably below the actual costs of service and that this unreasonably low rate excluded competition in the residential and commercial space and water heating market in which the PPA members participated. The complaint did not allege that PPA nor any of its members were customers of PP&L.

PPA’s petition for review filed with this Court continues the same arguments with respect to the PUC’s order but also contains the allegation that some of PPA’s members are customers of PP&L. PPA admits in its brief that in its presentation before the PUC it neither identified nor presented any evidence concerning its members who were customers of PP&L. Based on the limited record before us, therefore, we must conclude that the predominant interest of PPA in the PUC’s order here appealed was that of a competitor seeking to nullify the economic advantage PP&L enjoyed in the commercial and residential space and water heating market because of its PUC-approved rate structure. Although PPA has alleged in its petition for review an alternative interest in the order appealed from, i.e.,

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Bluebook (online)
377 A.2d 1270, 32 Pa. Commw. 19, 1977 Pa. Commw. LEXIS 1047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-petroleum-assn-v-pennsylvania-power-light-co-pacommwct-1977.