Philadelphia Electric Co. v. Pennsylvania Public Utility Commission

433 A.2d 620, 61 Pa. Commw. 325, 1981 Pa. Commw. LEXIS 1720
CourtCommonwealth Court of Pennsylvania
DecidedAugust 17, 1981
DocketAppeal, No. 1415 C.D. 1980
StatusPublished
Cited by47 cases

This text of 433 A.2d 620 (Philadelphia Electric Co. 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
Philadelphia Electric Co. v. Pennsylvania Public Utility Commission, 433 A.2d 620, 61 Pa. Commw. 325, 1981 Pa. Commw. LEXIS 1720 (Pa. Ct. App. 1981).

Opinion

Opinion by

Judge Rogers,

On July 27, 1979, the Philadelphia Electric Company (PECO) filed Supplement No. 6 to Tariff Electric-Pa. P.U.C. No. 25, designed to produce additional annual revenues from PECO’s electric service of $122,731,000, based on a future test year ending March 31, 1980. Supplement No. 6 was to become effective on September 25,1979. The PUC suspended operation of the proposed rates and ordered that an investigation and hearing be conducted to determine the lawfulness of the proposed rates, at R.I.D. 865.

Twenty-nine days of evidentiary hearings and five public comment hearings were conducted by an Administrative Law Judge, who thereafter issued a Reeommened Decision in which he found that PECO was entitled to $79,871,000 in additional annual revenues. PECO filed exceptions to the Recommended Decision. The PUC thereafter issued an order approving rates designed to produce additional annual revenues of $88,813,000 from which PECO has appealed.

PECO contends that the PUC’s order is erroneous in three respects. In this class of case our review is “limited to a determination of whether constitutional rights have been violated, an error of law committed or whether the findings, determinations or order of the Commission are supported by substantial evidence.” U.S. Steel Corp. v. Pennsylvania Public Utility Commission, 37 Pa. Commonwealth Ct. 195, 201, 390 A.2d 849, 853 (1978).

A. Excess Capacity Adjustment

PECO contends that the PUC improperly disallowed $25,043,000 of its claimed rate base as a dollar amount representing excess generating capacity. The PUC found that, for the test year, PECO had installed generating capacity of 7,689 megawatts (MW) [328]*328at summer estimated peak, but that it required only 6,914 MW of capacity to service its projected peak load and to maintain a generating reserve margin of 18%, which the PUC found to be the margin necessary to insure a reliability criterion of loss of load probability of one day in ten years. Thus, the PUC found that PECO had 775 MW of excess capacity, i.e., capacity over and above that necessary to meet peak demand and margin.

In eliminating excess capacity from rate base, the PUC identified as the generating units most representative of excess capacity those which were the least economical — Chester 5 and 6, Bichmond No. 9, Barbadoes Nos. 6 and 7 and Southwark Units 1-6, totalling 748 MW — and deducted the depreciated original cost of these units — $25,043,000—from PECO’s claimed rate base.

PECO contends that because its decisions to construct the eliminated units as well as its decisions to construct every other of its generating units, when made, were prudent, the PUC may not now remove any of these properties from rate base because there is presently excess capacity. This argument, however, misses the point of the determination. The PUC’s order specifically states that the PUC was “not questioning PECO’s management decisions made when these units were constructed.” The basis for the order is the finding that to the degree that there is excess capacity, there are generating properties which are not used'and useful in rendering service to rate payers.

A unit may be properly excluded from a utility’s rate base if the investment in that unit is found to be a result of managerial imprudence occurring at the time the decision to invest was made. See, e.g., UGI Corp. v. Pennsylvania Public Utility Commission, 49 Pa. Commonwealth Ct. 69, 86-87, 410 A.2d 923, 932 [329]*329(1980). It does not follow that a unit prudently constructed must always he included in the rate base. The touchstone for determining whether or not a prudently constructed unit should be included in a utility’s rate base is whether or not, during the test year involved the unit will be used and useful in rendering service to the public. Id. at 78, 410 A.2d at 928; Pennsylvania Power & Light Co. v. Pennsylvania Public Utility Commission, 10 Pa. Commonwealth Ct. 328, 334, 311 A.2d 151, 155 (1973).

What constitutes used and useful property is committed to the discretion of the Commission.
If the Commission reasonably finds that a particular class of property is not used or useful in serving the public, it may exclude the value of the property from the rate base and thus disallow the utility’s return on that property.

Bell Telephone Co. v. Pennsylvania Public Utility Commission, 47 Pa. Commonwealth Ct. 614, 629, 408 A.2d 917, 925 (1979). Moreover, “[i]n the area of adjustments to rate base, the Commission has wide discretion.” UGI, 49 Pa. Commonwealth Ct. at 79, 410 A.2d at 929.

The determination complained of was a proper exercise of PUC’s discretion. Cf. City of Pittsburgh v. Pennsylvania Public Utility Commission, 370 Pa. 305, 88 A.2d 59 (1952) (although establishment of accrual basis pension plan was prudent, over-accrual of pension fund, if proven, may be excluded from operating expenses); UGI, 49 Pa. Commonwealth Ct. at 76-79, 410 A.2d at 928-29 (the cost of drilling unsuccessful gas wells may be excluded from rate base); City of Pittsburgh v. Pennsylvania Public Utility Commission, 171 Pa. Superior Ct. 187, 90 A.2d 607 (1952) (whether to include or exclude certain coal mine properties in the rate base is a decision entrusted to the PUC’s discretion; “ [t]he fact that a utility owns and [330]*330operates a property or a business does not, in itself, justify its inclusions in tbe rate base, and tbe burden is upon the utility to show that the property is used and useful in the public service. ’ ’ Id. at 201, 90 A.2d at 614.)

In removing PECO’s excess capacity from the rate base the PU.C’s adopting one of the four methods advanced by an expert witness for the Office of Consumer Advocate, chose for removal from the rate base as representative of the excess capacity those units which were least economical. Although there were other methods available, such as factoring the excess capacity over all of PECO’s units, we cannot find that-the PUC erred by using the method it did. See UGI, 49 Pa. Commonwealth Ct. at 93-94, 410 A.2d at 935.

It is important to record that only a return on the investment is involved. The PUC did not order these units retired and it allowed PECO to continue to recover from rate payers the expenses of operating and maintaining the units in question, including depreciation. PECO’s investors were denied a return on their investments on these units; however, they were allowed the return of their investments in them. This was an appropriate discharge of the Commission’s duty to balance the interests of PECO’s customers against those of its investors. Pennsylvania Public Utility Commission v. Pennsylvania Gas and Water Co.

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Bluebook (online)
433 A.2d 620, 61 Pa. Commw. 325, 1981 Pa. Commw. LEXIS 1720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philadelphia-electric-co-v-pennsylvania-public-utility-commission-pacommwct-1981.