2002

First Quarter

Independent Oil and Gas Assoc. v. Pa. PUC

No. 443 M.D. 2001, 789 A. 2d 851 (Pa. Cmwlth. 2002) (filed January 7, 2002). 
A panel of Commonwealth Court judges overruled the preliminary objections of the PUC and the Office of Consumer Advocate (OCA) challenging the validity of the natural gas suppliers (NGS) action challenging their assessments. The NGS companies were seeking a declaration that the PUC does not have the statutory authority to assess the NSGs for regulatory expenses pursuant to 66 Pa. C.S. § 510.

First, the PUC argued that Commonwealth Court lacked subject matter jurisdiction because the NSGs had not exhausted their administrative remedies as mandated by section 510. The court held, however, that since the remedial provisions of section 510 apply only to “public utilities”, and NSGs are not public utilities when they use the distribution services of natural gas distribution companies, the NGS have not failed to exhaust their available administrative remedies.

Second, the PUC argued that the complaint provides insufficient specificity about the immediate competitive and financial harm that payment of their assessments may cause the NSGs. Here the court held that the PUC has all the information regarding the extent of the financial harm because it is the one who assessed the NSGs. Thus, the NSGs have pleaded with sufficient specificity.

Chester Water Authority v. Pa. PUC

No. 1649 C.D. 2001; Philadelphia Suburban Water Co. v. Pa. PUC; No 1696 C.D. 2001 (filed January 22, 2002). 
In an unreported decision, Commonwealth Court affirmed the PUC order adopting the ALJ initial decision to approve Philadelphia Suburban Water’s (PSW) application to expand its franchise area over the protests of its competitor Chester Water Authority (CWA). The court held that, as a prevailing party below, PSW had no standing to appeal, and that substantial evidence supported the PUC’s determination to grant the application based on public need, inadequacy of the existing service, and the fitness of the applicant to satisfactorily meet the need.

In its first issue on appeal, CWA claimed that there is no need for PSW to expand its franchise area because CWA is capable of meeting the water needs of the area in dispute. Based upon the evidence demonstrated at the ALJ hearing that the land in dispute is currently without water service and that the developer has a legitimate preference for PSW services, the court concluded that the PUC did not err in determining that there is a need for PSW to provide water service to such land.

In its second issue on appeal, the CWA complained that PSW did not prove that the existing water services are inadequate. The court stated that where there are no existing services, the services are inadequate, and that the inadequacy of service applies to the proposed project area, not the entire surrounding area.

In its final argument on appeal, CWA contended that PSW’s expansion is not in the public interest because CWA’s rates are lower than PSW’s. CWA argues that if they were to provide water services to the disputed area, then the residential customers in that area would save in excess of $120.00 per year. The court rejected CSW’s public interest argument for several reasons. First, CWA’s rates are not always lower than PSW’s. Second, serving the public interest also encompasses the promotion of safety, economics, and efficiency, which PSW clearly demonstrated they are in a better position to do.

PP&L Industrial Customer Alliance v. Pa. PUC

No. 1117 C.D. 2000 (filed January 30, 2002).
In an unreported decision, Commonwealth Court dismissed the appeal of PP&L Industrial Customer Alliance (PPLICA) regarding PUC approval of the petition of PPL Electric Utilities Corporation (PPL), which sought findings under 15 U.S.C. § 32(c) for 18 electric generation facilities that PPL intended to transfer to its affiliates. Among other findings, the PUC concluded that PPL’s information demonstrated that EWG status for the subsequent owners of the generation assets would benefit consumers and was in the public interest.

On appeal, PPLICA raised the following issues: (1) Did the PUC commit reversible error and violate the Public Utility Holding Company Act by failing to meaningfully examine factual disputes related to whether classification of PPL’s transferred generation facilities as “eligible facilities” will benefit consumers and be in the public interest? (2) Did the PUC violate the due process rights of ratepayers and PPLICA by refusing to convene an evidentiary review of PPL’s request for findings that designating its transferred generation facilities as “eligible facilities” would benefit the consumers and be in the public interest? (3) Did the PUC commit reversible error by rendering actual findings without the support of substantial record evidence concluding that the transferred generation facilities will benefit the consumers and be in the public interest?

The court held that PPLICA lacks standing to request a rehearing from the FERC’s order granting exempt wholesale generator (EWG) status to the transferred generation facilities because PPLCIA failed to establish itself as a party to the initial FERC proceedings by seeking to intervene. Furthermore, since 18 C.F.R. § 385.102 applies to requests for a rehearing following a final FERC order, a decision by the Commonwealth Court regarding the issues raised on appeal could not result in a rehearing. Thus, the instant appeal is moot.

Elite Industries, Inc. v. Pa. PUC

No. 1474 C.D. 2001, 793 A. 2d 160 (Pa. Cmwlth. 2002) (filed January 30, 2002), petition for allowance of appeal granted October 23, 2002. 
A panel of the Commonwealth Court reversed the decision of the PUC to forego the statutory requirement that applicants for limousine authority prove public demand/need for the proposed service. The court held that by eliminating the “public demand/need” requirement from the evidentiary criteria, the PUC had abrogated the statutory requirement that service be necessary, and that the record did not contain substantial evidence demonstrating a public demand/need for the applicant’s service.

In reaching its conclusion, the court stated that section 1103(a) authorizes the PUC to grant a certificate of public convenience only if it finds or determines that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. By eliminating this requirement, the PUC is effectively abrogating its statutory mandate of determining whether the service is necessary. Furthermore, the testimony relied upon by the PUC in making its determination fails to specifically address a public demand/need in the general area of the proposed service. The court also ruled that assertions made by a party in exception to an ALJ’s decision do not constitute substantial evidence upon which the PUC may base an order granting a certificate of public convenience.

Green Mountain Energy Co., New Power Co. SmartEnergy, Inc. and AES NewEnergy, Inc. v. Pa. PUC

No. 246 C.D. 2002 (filed February 8, 2002). 
In an unreported decision single-judge memorandum opinion, the court granted the application for stay filed by Petitioners regarding a PUC order that allowed the wind power tariff filed by PECO Energy Company (PECO) to become effective, subject to the adjudication of any pending complaints against the tariff. The court reasoned that the PUC neglected its duties under the Electric Competition Act (Chapter 28) and had denied Petitioners due process of law by permitting the tariff to become effective prior to a hearing on Petitioners’ complaint.

The court also stated that the Petitioners’ complaint to the wind power offering was not a challenge under section 1308 and, therefore, the discretionary suspension provisions of section 1308 do not apply. Finally, the court determined that if the stay is not granted the Petitioners would suffer irreparable harm in violation of their constitutional due process rights and in the anticipated adverse economic impact on Petitioners if the PECO wind power tariff is implemented.

ARIPPA v. Pa. PUC

Nos. 1462, 1564, 1635 and 1674 C.D. 2001, 792 A. 2d 636 (Pa. Cmwlth. 2002) (filed February 21, 2002), petition for allowance of appeal denied. 
The PUC consolidated for disposition the proposed merger between FirstEnergy Corp. and GPU, Inc., and the separate GPU petition for increased revenues needed to fulfill its provider of last resort (PLR) obligations under Chapter 28.

As to the merger proceeding, Commonwealth Court affirmed the PUC May 24, 2001 order granting the application filed by GPU and its PA public utility subsidiaries (Met Ed and Penelec) and First Energy for the merger of GPU into First Energy. However, the court remanded to the PUC to determine the precise amount of the merger savings and the allocation of those savings. The court held that while substantial evidence shows that the merger would be in the public interest, the record was unclear as to how the estimated merger savings were determined and how they would be distributed across FirstEnergy’s system.

As to the rate increase proceeding, the court ruled the PUC’s June 20, 2001 order approving the “Settlement Stipulation” proposed by GPU and First Energy, which adopted a deferral accounting mechanism as a means to recover their increased PLR costs above the rate cap, was reversed and, further, that the rate relief requested by GPU Energy was denied.

In regards to the non-unanimous settlement stipulation, the court generally criticized this procedure as potentially leading the agency to defer to the decision made by the consenting parties, or to shift the burden of proof to the non-consenting parties by forcing them to prove the unreasonableness of the settlement. However, since the parties did not challenge the ability of the PUC to approve such a settlement, the court when no farther on this issue.

As to other issues, the court ruled that the brief time allowed to respond to the non-unanimous settlement stipulation (less than 2 days) was adequate since the non-consenting parties had seen variations on this proposal earlier in the litigation, and that pursuant to section 703(g), the PUC had authority, after notice and opportunity to be heard, to modify the earlier GPU Restructuring Settlement.

As to the core rate increase issues, however, the court held that the PUC erred in finding that sufficient grounds existed to increase the rates under the rate cap exception provision of section 2804(4)(iii)(D), and the method it chose to make such a determination violated the Competition Act. The court reasoned that since GPU had made a strategic decision to sell its generation assets, the subsequent increases in wholesale electricity rates were not “outside of the control” of GPU within the meaning of section 2804(4)(iii)(D). The court also reasoned that competitive transition charges cannot be used to fund GPU Energy’s PLR costs because section 2804 only authorizes exceptions to the rate caps through an increase in the rates charged for current service, not the competitive transition charges which are intended to recover stranded costs.

City of Lancaster (Sewer Fund) v. Pa. PUC

No. 502 C.D. 2001, 793 A. 2d 978 (Pa. Cmwlth. 2002) (filed February 22, 2002).
Commonwealth Court affirmed PUC order reducing the City of Lancaster’s (City) general indirect administrative expense and adjusting the City’s wage claim to reflect a 3 percent annual wage increase rather than the 4 percent sought by the City. However, the court reversed the PUC’s findings as to the rate case expense allowed, and remanded the case for further proceedings.

The court held that the PUC erred in basing its rate case expense allowance on a hypothetical average of the rate case expenses of other utilities (citing Barasch v. Pa. PUC, 507 Pa. 561, 493 A.2d 653 (1985)), rather than on the City’s actual rate case expenses. Further, the court noted that the PUC made no finding that the City has, in fact, been excessively litigious in seeking this rate increase.

Commission on Economic Opportunity v. Pa. PUC

No. 709 C.D. 2001 (filed March 1, 2002). 
In an unreported decision, Commonwealth Court affirmed an order of PUC approving, as modified, the plan for Renewable Energy Pilot Programs submitted by the Pennsylvania Electric Association (PEA) on behalf of several electric distribution companies (EDC). In affirming the order, the court held that (1) the PUC is not obligated to address and reject each and every issue raised by all parties; and (2) that the adoption of the EDC’s position regarding the funding of non-installation expenses was an implicit rejection of the Commission on Economic Opportunity’s (CEO) request for imposition of interest or penalties upon PEA for their delay in establishing and submitting a final plan for the programs.

The court further noted that as the PUC is the administrative body charged with implementing the Electric Competition Act (Chapter 28) and is entitled to substantial deference in the performance of its duties. Further, the PUC’s interpretation of the Electric Competition Act should not be overturned unless it is clear that such construction is erroneous.

Consolidated Rail Corp. v. Pa. PUC

No. 852 C.D. 2001(filed March 11, 2002). 
In an unreported decision, Commonwealth Court affirmed an order of the PUC adopting the recommended decision of an ALJ which denied Consolidated Rail Corporation’s (Conrail) amended application for approval of the installation of shove lights in both the eastbound and westbound departure yards at Conway Yard. The court held that the PUC requirement that radios be used in shove movements is not preempted by the Locomotive Boiler Inspection Act (LBIA), 49 U.S.C. §§ 20701, since the state requirement neither limits nor expands the type of equipment with which locomotives are required to be equipped under federal law. The state requirement merely requires the use or non-use of already existing equipment, and thus raises no preemption concerns.

Sandra L Feigley v. Pa. PUC

No. 1178 C.D. 2001;

C.U.R.E. of Pennsylvania v. Pa. PUC

No. 1183 C.D. 2001, 794 A. 2d 428 (Pa. Cmwlth. 2002) (filed November 7, 2001).
Commonwealth Court affirmed the PUC order denying Feigley’s and C.U.R.E.’s exceptions, and adopting, with modification, the recommended decision of the ALJ. The consumer complaints alleged unreasonableness and unconstitutionality of the rates charged by AT&T and Bell Atlantic to recipients of telephone calls from inmates housed by the Pennsylvania Department of Corrections (Corrections Department).

The court held that substantial evidence supported the PUC determination that the petitioners failed to prove that AT&T collect call rates for inmates were “unjust and unreasonable” or that the rates violated their constitutional equal protection rights. In its reasoning, the court states that there is no constitutional right to use the telephone. Inmates do have a First Amendment right to communicate with family and friends; but this right is not the right to unlimited use of the telephone. Rather the First Amendment rights are subject to rational limitations in the face of legitimate security interests of the penal institution.

In a dissenting opinion, Judge Smith-Ribner stated that the real issue was whether it is just and reasonable to impose the obligation upon the families and friends of inmates to fund a $5 million commission to the Commonwealth through the payment of excessive collect call rates set by the provider of the Commonwealth’s inmate telephone system. Relying on Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994), Judge Smith-Ribner states that the telephone service provided by prison administrators is subject to judicial scrutiny for unreasonable restrictions.

Further, she notes that the majority should have applied the reasonableness test put forth in Turner v. Safley, 482 U.S. 78 (1987), which requires a determination of whether a valid and rational connection exists between the regulation and a legitimate governmental interest to justify it; whether alternative means are available to prisoners for exercising their First Amendment rights; whether the impact of an accommodation of prisoner rights at issue is overly burdensome; and whether a total lack of other obvious alternatives exist.

PECO Energy Co. v. Pa. PUC

Nos. 22 & 23 MAP 2001, 791 A. 2d 916 (Pa. 2002) (filed March 20, 2002).
The Supreme Court of Pennsylvania reversed an order of the Commonwealth Court that had vacated and remanded an order of the PUC regarding the allocation of rail-highway crossing costs. The PUC order, which the Commonwealth Court had reversed, but was subsequently reinstated, required PECO and Bell to each bear 100% of their respective costs in relocating their subsurface facilities, which were impacted by a rail-highway crossing improvement project along Delaware Avenue in the City of Philadelphia. The Supreme Court held (1) that in abrogating the old common law rule (requiring non-transportation utilities to pay their own costs), the legislature intended to expand the ambit of the PUC’s discretion. Thus, the Commonwealth Court erred in calculating that the PUC may not consider factors underlying the common law rule when making cost allocations and (2) that based on considerations of appropriate factors, the PUC decision was based on substantial evidence.

The court reasoned that the plain reading of the statute indicates that the PUC is empowered to assess costs against the public utilities in any proportion that the PUC determines, which could include 100% of the costs. The PUC is not confined to any one formula, but must consider all relevant factors when allocating utility relocation costs. Thus, the PUC, having considered all relevant factors in making its determination rather than blindly adhering to an abrogated common law rule, was well within its discretion when ordering PECO and Bell to each pay 100% of their respective costs. The court also concluded that the legislature clearly did not intend to limit the discretion of the PUC as to an award of relocation costs, but expanded that discretion by removing the requirement contained in the common law rule that the PUC must allocate all of the cost for relocation to the utilities themselves.

Second Quarter

United Parcel Service, Inc., v. Pa. PUC

No. 822 C.D. 2001 (Pa. Cmwlth.) (filed April 3, 2002), vacated and remanded (July 23, 2003).
In an unreported memorandum opinion, Commonwealth Court dismissed an Application to Enforce an Unappealed Final Decision filed by United Parcel Service (UPS) in response to PUC’s recalculation of its assessments for tax years 1997 to 2000 pursuant to court’s remand order. UPS contended that instead of recalculating the assessments by proportionately allocating one category of indirect expenses among the 11 groups of utilities that furnish the same type of service, the PUC also reduced the number of utility groups among which it made the allocation to seven groups of utilities.

The court reasoned that section 510(b) required the PUC to determine its expenditures for each group of utilities furnishing the same kind of service, and that all transportation utilities can be said to be furnishing the same kind of service. Therefore the PUC did not err in grouping them together as one utility group for purposes of allocating its indirect expenses and was in compliance with their previous order.

Consolidated Rail Corp. v. Pa. PUC

No. 1838 C.D. 2001 (Pa. Cmwlth.) (filed April 3, 2002).
In an unreported memorandum opinion, Commonwealth Court affirmed a decision by the PUC denying certification of any costs incurred for supplies purchased and work performed by Norfolk Southern at crossing gates. Conrail contended that the PUC committed an error of law by applying the wrong legal standard when considering its appeal because the Secretarial Letter was not a final order. The court reasoned that the Secretary is not a subordinate officer making intermediate decisions that are subject to review by the Commission, but is acting on behalf of the Commission itself. Since the Secretarial Letter was a final order, Conrail had to file a petition for review appealing the merits of the case within 30 days of the final order. Conrail filed a request for reconsideration and not an appeal. Therefore, Conrail could not appeal the merits of this case, only if there was an abuse of discretion and since there was no abuse of discretion, Conrail’s request was denied.

City of Chester v. Pa. PUC

No. 2212 C.D. 2000;

Norfolk Southern Railway Co. v. Pa. PUC

No 2225 C.D. 2000, 798 A. 2d 288 (Pa. Cmwlth. 2002)(filed May 1, 2002).
A panel of the Commonwealth Court granted the Norfolk Southern’s objection of the PUC’s allocation of cost for repairs and maintenance of the Lloyd Street Bridge. Norfolk Southern argued that the PUC does not have jurisdiction to allocate maintenance costs to it because only the owner of property, Amtrak, and facilities at a rail crossing is liable for maintenance obligations.

The court held that since there is no dispute that Amtrak is the owner of the rail-line, the PUC abused its discretion in allocating 5% of the maintenance costs of the bridge to Norfolk Southern. The court reasoned that the usage of property alone is not a justification form imposing cost allocations at crossings and an owner of a railroad with a crossing over its line is the party responsible for costs associated with that rail line.

Elite Industries, Inc., v. Pa. PUC

No. 2847 C.D. 2001 (filed May 31, 2002).
In an unreported opinion, a Commonwealth Court panel affirmed a decision of the PUC that granted a certificate of public convenience to provide airport transfer service from Lehigh Valley International Airport. The court stated that the PUC’s statutory authority is broad, and that a certificate may be granted by order of the PUC only if the Commission determines that the granting of a certificate is necessary or proper for the service, accommodation and convenience, or safety of the public. The court held that the record fully supported the finding that applicant’s testimony was probative of the need for the type of service embodied in the application and, therefore, the PUC correctly determined that the applicant had met its burden of proof to establish a public demand or need for its service.

PPL Energyplus, LLC, v. Commonwealth of Pa.

No. 525 M.D. 2001, 800 A. 2d 360 (Pa. Cmwlth. 2002) (filed June 6, 2002).
Commonwealth Court denied PPL’s application for summary relief. PPL had argued that the PUC erred in concluding that PPL is a public utility, concluding that an EGS is subject to regulatory assessments and in grouping electric generation suppliers with electric distribution companies to calculate single assessment rate.

The court held that EGSs are “public utilities” for the limited purposes described in sections 2809 and 2810 and, therefore, the PUC did not err in assessing PPL under section 510. The court also held that since EGS companies provide the “same kind of service” as electric distribution companies, the PUC did not violate section 510(b) by grouping the two types of entities into a single group for assessment purposes.

National Railroad Passenger Corp. v. Pa. PUC

No. 01-2419, 288 F. 3d 519 (3rd Cir. 2002) (filed May 1, 2002).
The Third Circuit Court of Appeals affirmed the federal District Court opinion below which held that the doctrine of collateral estopple precludes the PUC from relitigating its claim to Eleventh Amendment immunity when sued by Amtrak. The Third Circuit reasoned that the Eleventh Amendment issue was litigated in an earlier 1997 proceeding involving Amtrak, that the issue was reached and determined in that earlier proceeding,, that the issue was essential to the judgment and that the same parties were involved. Accordingly, the elements of collateral estopple were satisfied.

Third Quarter

Herbert L. Joseph, II v. Pa. PUC

No. 2958 C.D. 2001 (filed July 9, 2002), petition for allowance of appeal denied.
In an unreported decision, Commonwealth Court affirmed the PUC decision which denied an application to provide limousine service in Allegheny Court for failure to supply sufficient information to demonstrate financial fitness. The court held that the PUC has authority under section 1103(a) to establish reasonable standards for granting a certificate and that its guidelines require “financial ability” to provide the service. Here, the applicant failed to meet that burden when it could not demonstrate that it had $25,000 in either liquid assets or a line of credit.

Independent Oil & Gas Assoc. v. Pa. PUC

No. 443 M.D. 2001, 804 A. 2d 693 (Pa. Cmwlth. 2002) (filed July 12, 2002).
Commonwealth Court granted the natural gas suppliers’ (NGSs) Application for Summary Relief because they are not considered “public utilities.” The PUC had determined that the NGSs were subject to regulatory assessments pursuant to section 510. The court ruled that the application of section 510 is clearly limited to public utilities. Also, the court noted that the legislature apparently intended to treat one group of energy suppliers differently. While the definitions in section 102 provide that EGSs are not public utilities, except for the limited purposes described in sections 2809 and 2810, there is no such limited exception for NGSs.

Accordingly, the court held that the PUC has no basis to assess the NGSs a regulatory assessment fee for the cost of their regulation under Chapter 22. The court also denied NGSs request for attorney’s fees and pre-judgment interest. The NGSs, however, were granted post-judgment interest.

Southeast Pennsylvania Transportation Authority v. Pa. PUC

No. 95-4500;
National Railroad Transportation Corp. v. Pa. PUC
No. 01-5570 (filed July 12, 2002).
The U.S. District Court for the Eastern District of PA ruled upon a number of motions related to ongoing litigation regarding the ability of the PUC to assess rail-highway crossing costs upon Amtrak and SEPTA, and the unresolved conflict between the federal and state courts on this issue.

The federal court held that the SEPTA consent decree between SEPTA and the PUC is a valid and enforceable judgment, and that the PUC’s allocation of the Lloyd Street Bridge costs to SEPTA pursuant to a Commonwealth Court decision was a violation of the consent decree. The federal court also stated that it has authority via the All Writs Act and removal jurisdiction to prevent parties from seeking to assess SEPTA in state court.

As to Amtrak, the federal court ruled that the PUC is collaterally estopped from re-litigating the Eleventh Amendment issue and that abstention is not appropriate here. The federal court ruled that the PUC is preliminarily enjoined from assessing costs on Amtrak as to the Lloyd Street Bridge based on its findings that Amtrak has a strong likelihood of success on the merits, that denial of the preliminary injunction will irreparably harm Amtrak and that, given the federal tax exemption for Amtrak, enjoining the imposition of these costs on Amtrak is in the pubic interest.

Irwin A. Popowsky v. Pa. PUC

No. 1665 C.D. 2001, 805 A. 2d 637 (Pa. Cmwlth. 2002) (filed July 17, 2002), petition for allowance of appeal denied. 
Commonwealth Court vacated the PUC order dated June 21, 2001 that had approved a rate case settlement between the Emporium Water Company and the Law Bureau, and reinstated the original rate order dated March 8, 2001. In the March 8 order, the PUC had granted Emporium a $33,371 rate increase. Emporium then filed an appeal alleging, among other things, that the actual revenues allowed would be insufficient to pay its current expenses and capital costs. Emporium and the Law Bureau subsequently negotiated a proposed settlement that would provide an additional $24, 129 rate increase. After the solicitation and consideration of comments to the proposed settlement, the PUC’s June 21 order approved the proposed settlement and supplemental rate increase.

On appeal of the June 21 order, OCA argued that, pursuant to Pa. R.A.P. 1701(a), the PUC had no jurisdiction to consider the settlement due to the then pending Emporium appeal, and that its due process rights were violated in that Law Bureau was a signatory to the proposed settlement. On the merits, OCA claimed that the hypothetical capital structure that supported the proposed settlement and increased revenue allowance was unlawful and inconsistent with PUC precedents. The court, however, ruled that the PUC’s allowance of written comments only to the proposed settlement, without an opportunity to present evidence or cross-examine witnesses, did not meet the Chapter 7 requirements for amending a prior PUC order under section 703(g).

The court appears to have reasoned that since section 703(g) refers to notice and opportunity to be heard “as provided in this chapter” and section 703(a) generally requires a hearing if the complaint is not satisfied, “any other action with regard to a complaint requires a hearing.” The court also mentioned, in dicta, its difficulty in determining the proper scope of review where the PUC approves a non-unanimous settlement.

Airport Limousine Service, Inc. v. Pa. PUC

No. 297 M.D. 2002 (filed August 29, 2002).
In an unreported decision, Commonwealth Court dismissed the application for mandamus filed by Airport Limousine. Airport Limousine had argued that since the court’s recent decision in Elite Industries had invalidated the PUC’s policy statement eliminating public need as an evidentiary criteria, the 85 applications granted under the lower entry standards should be revoked.

The court held that the mandamus action should be dismissed due to failure to join other carriers who would be adversely affected, and because Airport Limousine had participated many of the 85 application cases but failed to take action to preserve its issues. The court also ruled that there is no clear legal duty on the PUC to revoke the 85 certificates given that pursuant to Pa. R.A.P. 1736(b) the PUC’s petition for allowance of appeal regarding the Elite Industries decision acts as an automatic supersedeas.

City Council of Philadelphia, et al. v. Commonwealth of PA and Pa. PUC

No. 34 M.D. 2000, 806 A. 2d 975 (Pa. Cmwlth. 2002) (filed September 12, 2002). 
The Commonwealth Court granted the preliminary objections filed by the Commonwealth and PUC in response to the original jurisdiction petition for review filed by City Council of Philadelphia which seeks of have the Natural Gas Choice and Competition Act (Chapter 22) declared unconstitutional and/or subject to the Philadelphia Home Rule Charter. The court held that the petition for declaratory order was not ripe for consideration because there is no current threatened harm to existing contracts or city bonds and there is no risk of immediate harm as required by the ripeness standard articulated in the Philadelphia Federation of Teachers case.

The dissenting opinion by Judge Kelley argues that the presence of “antagonistic claims indicating imminent and inevitable litigation” in this matter leads the conclusion that the petition does present a claim that is ripe for review.

Chester Water Authority v. Pa. PUC

No. 2967 C.D. 2001 (filed September 18, 2002), reconsideration granted, opinion withdrawn. 
Commonwealth Court affirmed the portion of the PUC decision that had granted a motion for judgment on the pleadings as to the protest filed by Chester Water Authority to Philadelphia Suburban Water Company’s application for authority to serve a new development in Thornbury Township. The court held that the PUC properly dismissed the protest since it failed to raise any genuine issue of fact.

However, the court vacated the portion of the order granting the application because the PUC failed to conduct a “public hearing” pursuant to section 1103(b). Here the court held that the PUC deprived the public of an opportunity to present its position on the pending application pursuant to the section 1103(b) duty to hold public hearings. The dissenting opinion by Judge Colins argued that since there was no factual dispute, the application should have been granted without a remand.

Fourth Quarter

Philadelphia Suburban Water Co. v. Pa. PUC

No. 616 C.D. 2001, 808 A. 2d 1044 (Pa. Cmwlth. 2002) (filed October 31, 2002).
Commonwealth Court reversed that portion of the PUC decision, in a section 1103 application proceeding, that had approved a provision of the PA American Water Company’s purchase agreement for the City of Coatesville’s water system. As part of the overall deal, the utility and city had agreed to a provision under which PA American would make an annual contribution, in perpetuity with shareholder funds, to Coatesville’s economic development fund equal in amounts to the costs of fire hydrant service to the city. The court held that this provision violated section 1303 as an indirect deviation from the utility’s obligation to charge tariffed rates for fire hydrant service.

The court also held that petitioner Philadelphia Suburban’s agreement with the borough of Chalfont to implement a temporary freeze on Chalfont's rates for fire hydrant service does not bar petitioner from raising its challenge since the parties and circumstances in Chalfont are materially different from those present here and, therefore, judicial estoppel does not apply.

Judges Pellegrini and Smith-Ribner dissented reasoning that because the funds for the economic development fund were to be contributed by shareholders, ratepayers would not be harmed and, therefore, section 1301 would not be violated.

Reading Blue Mountain & Northern Railroad Co. v. Pa. PUC

No. 357 C.D. 2002 (filed November 4, 2002).
In an unreported decision, the Commonwealth Court vacated and remanded the PUC decision that had allocated 100 percent of the cost to rebuild the Coxton Road railroad crossing to Blue Mountain. The court held that in evaluating the allocation of these rail highway crossing costs the PUC failed to consider “all relevant factors” as required by the court’s decisions in AT&T (1999) and Greene Township (1995).

Yellow Cab Co. of Pittsburgh, et al. v. Pa. PUC

No. 571 C.D. 2002 (filed November 8, 2002). 
In an unreported decision, Commonwealth Court affirmed the PUC decision that had granted an application by Personal Transport, Inc. to provide call and demand service in the city of Pittsburgh and denying the protests. The court held that the PUC did not err in granting the scope of service territory that it did since “public demand” can be demonstrated via sampling, citing Yellow Cab (1996), and need not demonstrate public need in every point of the proposed service territory.

The court also held that the PUC did not err in concluding that the applicant was fit, despite lack of common carrier experience. The record supported the PUC findings that applicant had prepared a business plan, had meet with individuals experienced in the common carrier trade, and had familiarized himself with the PUC’s regulations. Finally, the court held that the PUC did not err in giving little weight to the protestants’ evidence since questions of evidentiary weight lie with the PUC to resolve.

Green Mountain Energy Co. et al. v. Pa. PUC

No. 246 C.D. 2002, 812 A. 2d 740 (Pa. Cmwlth. 2002) (filed November 19, 2002), petition for allowance of appeal denied.
Commonwealth Court granted the PUC’s motion to quash the appeal from a PUC order that had permitted PECO Energy’s wind power tariff to become effective, without prejudice to the pending complaints against the tariff that had been filed by Green Mountain and others. The court held that the PUC’s order allowing the wind power tariff to become effective subject to adjudication of any pending complaints was not a final order under Pa. R.A.P. 341(b) and, therefore, was not appealable. The court also held that the issue raised by Green Mountain’s attempted appeal of the interlocutory order was not severable from the merits of the underlying action, the matter was not appealable under the collateral order doctrine expressed in Pa. R.A.P. 313.

In a dissent filed by Judge Leadbetter, the judge reasoned that although the order is interlocutory, the issue is one that will evade appellate review unless addressed now by the court. The manner in which the PUC exercises its discretionary suspension power under section 1308 (b) should take into account the effect on competition and, in this instance, Judge Leadbetter believes that the PUC abused its discretion by permitting the tariff to become effective.