Popowsky v. Pennsylvania Public Utility Commission

910 A.2d 38, 589 Pa. 605, 2006 Pa. LEXIS 2261
CourtSupreme Court of Pennsylvania
DecidedNovember 21, 2006
Docket19 MAP 2005
StatusPublished
Cited by61 cases

This text of 910 A.2d 38 (Popowsky v. Pennsylvania Public Utility Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Popowsky v. Pennsylvania Public Utility Commission, 910 A.2d 38, 589 Pa. 605, 2006 Pa. LEXIS 2261 (Pa. 2006).

Opinions

OPINION

Justice CASTILLE.

The issue on appeal is whether a demonstration of public need for water alone is sufficient to require a water company to extend its water lines and service without receiving customer contribution, in an instance where the cost of the extension project would exceed the company’s expected revenue from the extension. Because we find that the Public Utility Commission’s (“PUC’s”) line extension regulations, which authorize a utility to require customer contribution in an instance such as this, are a proper application of statutory authority, we affirm.

On May 3, 2001, Cindy Parks filed a complaint with the PUC alleging that the town of Hickory in Mount Pleasant Township, Washington County, lacked public water that residents and property owners both needed and wanted.1 The Township is located within the service territory of appellee/intervenor the Pennsylvania-American Water Company (the “PAWC” or the “utility”). On May 24, 2001, the PAWC filed an answer containing a general denial of the allegations in the [610]*610complaint and a request that the complaint be dismissed. The PAWC alleged that it was willing to provide water service to bona fide service applicants2 in the Township pursuant to the terms of Rule 27 of its Tariff, which was approved by the PUC and filed in compliance with the PUC’s line extension regulations.3 Rule 27 governs main extensions for bona fide service applicants. The significance of the PAWC’s allegation, briefly stated, is that the PUC’s regulations (and Rule 27, which implements those regulations) permit a utility to require customer contributions to a water extension project if the cost of the project exceeds what the regulations require the utility to contribute.4

On June 14, 2001, the Office of Consumer Advocate (“OCA”) filed a Motion of Intervention and Public Statement, stating that it intended to assist Parks and other Township residents to obtain public water at the lowest reasonable cost. After a pre-hearing conference, by letter dated January 25, 2002, the OCA requested an indefinite suspension of the litigation schedule because of an agreement between the parties that the PAWC would apply for a Penn Vest loan. Penn Vest [611]*611loans are issued pursuant to the Pennsylvania Infrastructure Investment Authority Act, 35 P.S. §§ 751.1-751.20. The Act authorizes, inter alia, low-cost financing for water supply, sewage and stormwater projects to promote the health and safety of Pennsylvania citizens. Id. § 751.2. On January 28, 2002, an Administrative Law Judge (“ALJ”) granted the OCA’s request and suspended litigation. On July 18, 2002, however, the PAWC and the OCA apprised the ALJ that they were unable to reach an agreement.

On August 21, 2002, the OCA filed a complaint against the PAWC, alleging that the Township had an inadequate quantity and quality of water. The OCA requested that the PAWC be required, at the PAWC’s sole expense, to extend its water service into the Township and alleged that the PAWC was in violation of Section 1501 of the Public Utility Code, 66 Pa.C.S. § 101 et seq., which requires public utilities to extend water lines “as shall be necessary ... for the accommodation, convenience and safety of its patrons, employees, and the public.” Id. § 1501. On September 12, 2002, the PAWC filed an answer denying the claims made by the OCA, and asserting that it would extend service to bona fide service applicants if the terms of its Tariff were satisfied. Pursuant to that Tariff (and the PUC regulations it tracked), the PAWC claimed that it was obliged to expend $6200 per bona fide service applicant for the extension of water service, but the remainder of the cost of the project would have to be borne by the service applicants or some other entity on behalf of the applicants.

ALJ Larry Gesoff held evidentiary hearings on September 9, 2002 and December 3, 2002. Local residents, landowners and community leaders testified regarding the inadequate water supply and poor and unsafe quality of their water. Residents testified to problems they had encountered in accessing water, the costs they had expended in installing and maintaining equipment used to obtain, store and render potable their water supplies, and other costs attributable to having to turn elsewhere for water or water-related services (such as clothes laundering). Residents also testified to the danger posed in the event of a fire, as water for fighting fires must be [612]*612brought by tanker truck; indeed, one home was destroyed by fire because firefighters ran out of water, and another resident lost a bam and 110 sheep to a fire.

The parties disputed the question of whether the line extension project was one that would require customer contribution under the Commission’s line extension regulations and the PAWC’s Rule 27. The PAWC argued that the cost of the project would exceed its required investment, and thus it was entitled to request customer contribution as a condition of undertaking the project, while the OCA argued that the PAWC’s required investment would be substantially more than the cost of the project, and thus, no customer contribution would be required. To understand the competing calculations requires some understanding of the operation of the regulations. The regulations provide a method for determining the investment required of the utility for each “bona fide service applicant.” That per-applicant investment is then multiplied by the number of bona fide service applicants; the total dollar figure represents the utility’s required investment. The utility’s investment amount is then measured against the estimated cost of the project. If the utility investment exceeds the cost, no customer contribution is required. If the required utility investment is less than the project cost, however, contribution may be requested of bona fide service applicants, whose individual obligation is determined by simply dividing the cost difference by the number of applicants.

The PAWC produced evidence that the main line water extension project in the Township (as proposed by the OCA) would involve in excess of 83,000 feet of water mains and a one-million gallon storage tank, and would cost $6,290,499. Calculating its investment obligation, the PAWC assumed 744 new customers as bona fide service applicants.5 Applying the algebraic formula set forth in Section 65.21(3) of the PUC’s [613]*613regulations, the PAWC claimed, it would be required to invest $6,200 for each bona fide service applicant.6 (In contrast, the utility noted, its investment in its existing facilities servicing existing customers was only $2,309.) Multiplying its per-applicant obligation by the 744 applicants it projected, the PAWC calculated its required investment in the project to be $4,612,800 (744 x $6,200). Taking the $1,677,699 difference between the cost of the project and its required investment, the PAWC then calculated the customer contribution of each bona fide service applicant to be $2,255 (ie., $1,677,699 -r 744). The actual contribution could be either more or less depending upon how many residents actually took service upon completion of the project, and indeed, under the regulations, the PAWC would be obliged to provide refunds to the original service applicant-contributors if additional customers attached to the new water mains in the ensuing ten years.7

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Cite This Page — Counsel Stack

Bluebook (online)
910 A.2d 38, 589 Pa. 605, 2006 Pa. LEXIS 2261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/popowsky-v-pennsylvania-public-utility-commission-pa-2006.