West Penn Power Co. v. Pennsylvania Public Utility Commission

521 A.2d 75, 104 Pa. Commw. 21, 1987 Pa. Commw. LEXIS 1934
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 13, 1987
DocketAppeal, 3128 C.D. 1985
StatusPublished
Cited by42 cases

This text of 521 A.2d 75 (West Penn Power 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
West Penn Power Co. v. Pennsylvania Public Utility Commission, 521 A.2d 75, 104 Pa. Commw. 21, 1987 Pa. Commw. LEXIS 1934 (Pa. Ct. App. 1987).

Opinions

Opinion by

Judge Doyle,

This is an appeal by the West Penn Power Company (West Penn) from an order of the Public Utility Commission (Commission) adopting the order of Administrative Law Judge Solomon (ALJ), which directed that West Penn amend its Manual of Procedures pertaining to credit standards “to insure that the absence of prior credit history on the part of the customer does not, in and of itself, result in a determination that a customer is an unsatisfactory credit risk.” The order further directed that the Manual of Procedures and related forms pertaining to the collection of security deposits from applicants be amended, thus ending West Penns practice of “issuing a notice of termination prior to the occurrence of a default on the part of a customer who has been requested to pay a security deposit.” The ALJ also ordered payment of a $250 civil fine. This amount was increased by the Commission to $1,000, but in all other respects the Commission adopted the order of the ALJ.

This case was brought before the Commission by a private complainant, Goldie King. King, who is separated from her husband, began receiving service from West Penn on January 17, 1984 at her residence at 214 [24]*24East Cherry Lane, Bellefonte, Pennsylvania. On February 10, 1984 King completed a written application for electric service with West Penn. On her application, in answer to an inquiry as to the length of her lease, King marked “None.” By letter dated February 24, 1984 West Penn notified King that “a security deposit would be necessary because of no prior credit history” and that if such deposit were not forthcoming by March 5, 1984 her service would be terminated. King had no credit history in her own name because all credit accounts had been maintained in her husbands name. In the same envelope as the above-described letter, West Penn enclosed a notice to King that her electric service “will be terminated on or after 8:30 a.m. March 5, 1984. This action is to be taken because your security deposit of $100.00 will be past due.” At the time that these notices were sent to King, her account was current and not in any way delinquent. On March 2, 1984 King presented her one-year lease to West Penn, which then withdrew its request for a security deposit. At all times relevant to this case, West Penns Manual of Procedures provision on credit standards read:

If service is connected pending credit investigation and customers credit rating proves unsatisfactory, prepare Termination Notice for Applicant with Unsatisfactory Credit, form 11-191 [later retitled Security Deposit Request-Applicant] in duplicate and Termination Notice-Resident Ratepayer, form 11-189.

Commission Regulation 56.32, 52 Pa. Code §56.32, relating to credit standards, states in relevant part:

A utility shall provide residential service without requiring a deposit when the applicant satisfies one of the following requirements . . .
(2) ... The applicant ... is renting his place of residence under a lease of one year or [25]*25longer in duration, unless the applicant has an otherwise unsatisfactory credit history as an [sic] utility customer within two years prior to the application for service.

In addition this regulation further provides:

(i) The absence of prior credit history does not, of itself, indicate an unsatisfactory risk.

The ALJ found that West Penn had violated Regulation 56.32 by requiring a security deposit from King based only upon its determination that she had no prior credit history. And, although West Penn contends that that was only one of its reasons for requiring the security deposit, the ALJ found that no other reason was given to King. The ALJ also found, however, that King was not entirely without fault because she had not on her application indicated the existence of her one-year lease and that when such information was provided to West Penn, it withdrew its request for a security deposit. Therefore, the ALJ imposed no sanction against West Penn for this violation.

The ALJ then considered the issue of whether the mailing of the termination notice along with the security deposit request was in violation of the Commissions regulations. He noted first that under Regulation 56.99, 52 Pa. Code §56.99, a utility is not permitted to threaten to terminate service when it has no present intent to do so. He recognized in addition that Regulation 56.99 prohibits the use of a termination notice as a collection device. After examining the letter sent to King requesting the security deposit,1 the ALJ concluded that because in this instance the intent of the notice to termi[26]*26nate was to cause payment of the security deposit, a violation had occurred. He also found, based on the evidence, that West Penns own internal operating procedures instructed employees to transmit simultaneous requests for security deposits and termination notices and considered this an aggravating circumstance. Therefore, in addition to determining that violations had occurred, he assessed a civil penalty. Exceptions to his initial determination were filed, and a minor semantics modification to the order was made. On further appeal the Commission affirmed the order but, as noted above, increased the amount of the penalty.

On appeal to this Court, West Penn does not argue that it did not violate the Commissions regulations. Instead, it asserts (1) that because the request for the security deposit was withdrawn the case is moot, (2) that King suffered no injury so that the case should be dismissed, and (3) that the ALJs initial order is null and void because it was not entered within 90 days after the record was closed.

We shall examine this last point first inasmuch as the allegation is that the referee and Commission lacked subject-matter jurisdiction to enter any order more than 90 days after the record had been closed. Section 332(g) of the Public Utility Code (Code), 66 Pa. C. S. §332(g), pertaining to procedures before the Commission, provides in pertinent part:

[H]earings shall be commenced by the administrative law judge within 90 days after the proceeding is initiated, and he shall render a decision within 90 days after the record is closed, unless the Commission for good cause by order allows an extension not to exceed an additional 90 days.

It is agreed that no extension was sought and that the order was not entered by the ALJ until eleven months after the record was closed. It appears that this delay [27]*27was attributable to the resignation of the administrative law judge, who heard the testimony on June 18, 1984, but who resigned prior to rendering a decision. Although the record was closed on August 1, 1984, the Commission did not reassign the case to ALJ Solomon until May 15, 1985. His decision was issued on July 1, 1985. West Penn argues that Section 332(g) of the Code is mandatory and, hence, that after a 90-day period no order can validly be entered. The Commission contends that the time limit is directory only.

Whether a statute is mandatory or directory must be determined by considering legislative intent gleaned from review of the entire statute and from considering the nature and object of the statute and the consequences of the construction of it one way or the other. Pennsylvania Railroad Company v. Board of Revision of Taxes, 372 Pa. 468, 93 A.2d 679 (1953).

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Bluebook (online)
521 A.2d 75, 104 Pa. Commw. 21, 1987 Pa. Commw. LEXIS 1934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-penn-power-co-v-pennsylvania-public-utility-commission-pacommwct-1987.