Public Service Co.

207 Ct. Cl. 1041, 1975 U.S. Ct. Cl. LEXIS 149

• Court: United States Court of Claims
• Decided: October 24, 1975
• Docket: No. 26-73
• Status: Published

Opinion

On October 24,1975 the court issued the following order:

Before CoweN, Chief Judge, Laeamoke, Senior Judge, and BeNNett, Judge.

“This case comes before the court on the parties’ cross motions for summary judgment. Upon consideration of the motions and briefs of the parties, and after hearing oral argument, the court finds that there are material issues of fact which preclude disposition of this case by summary judgment.

“it is therefore ordered that the cross motions for summary judgment are denied, and this case is hereby remanded to the trial judge with instructions as follows:

“(1) The trial judge shall assume without deciding that Section 5.2 of the contract entered into between the parties is ambiguous. Accordingly, he shall permit the introduction of parol evidence offered by the parties to show the meaning of Section 5.2 of the contract and, particularly, how they intended that this provision of the contract should be construed with reference to Section 5 of the Flood Control Act of 1944 (16 U.S.C. §825s), and the trial judge shall make and report bis findings of fact and conclusions of law on this issue.

“(2) The trial judge shall also hear evidence and make and report his findings of fact and conclusions of law on the issue as to whether the Secretary of the Interior, in setting the rates complained of by plaintiffs and confirmed and approved by the Federal Power Commission, acted arbitrarily, capriciously, or abused the discretion vested in him by Section 5 of the Flood Control Act of 1944 (16 U.S.C. § 825s).”