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PA Bulletin, Doc. No. 02-1933

NOTICES

Water Service

Order on Reconsideration

[32 Pa.B. 5383]

Public Meeting held
October 10, 2002

Commissioners Present:  Glen R. Thomas, Chairperson; Robert K. Bloom, Vice Chairperson; Aaron Wilson, Jr., recusal statement follows; Terrance J. Fitzpatrick, dissenting statement follows; Kim Pizzingrilli

Application of Pennsylvania Suburban Water Company for approval to begin to offer, render, furnish or supply water service to the public in an additional portion of Thornbury Township, Delaware County; Doc. No. A-210104F0016

Order on Reconsideration

By the Commission:

   On September 12, 2002, the Commission entered an order at this docket dismissing a protest filed by the Chester Water Authority (CWA). The Commission's dismissal of CWA's protest was based upon a motion for judgment on the pleadings filed by Pennsylvania Suburban Water Company (PSWC). The Commission's order concomitantly approved the application of PSWC for a certificate of public convenience to provide water service to an additional portion of Thornbury Township, in Delaware County.

   On September 18, 2002, Commonwealth Court issued an Opinion and Order at 2967 C.D. 2001 remanding to the Commission our Order entered December 10, 2001, at Docket No. A-212370F0065, also involving proposed service by PSWC to Thornbury Township, Delaware County. The Court's remand order in the related case effectively requires the Commission to hold hearings on Chapter 11 applications. Accordingly, we shall expressly reconsider our Order entered September 12, 2002, at this docket; Therefore,

   It Is Ordered That:

   1.  The Commission's Order entered September 12, 2002, at this docket shall be reconsidered.

   2.  Notice of this application shall be republished in the Pennsylvania Bulletin, with a 10-day comment period, soliciting public comment and requests for oral hearing.

   3.  This matter shall be reassigned to the Office of Administrative Law Judge for oral hearing, if requested.

   4.  The instant application for a certificate of public convenience be approved without further order of the Commission if no public comment or request for oral hearing is timely received.

   5.  A Copy of this Order be served upon Pennsylvania Suburban Water Company, Township Supervisors of Thornbury Township, Office of Trial Staff and any persons or parties who have filed protests against the Application.

JAMES J. MCNULTY,   
Secretary

Dissenting Statement of
Commissioner Terrance J. Fitzpatrick

   This case involves an Application for a Certificate of Public Convenience filed by Pennsylvania Suburban Water Company (''PSWC''). On September 12, 2002, the Commission entered an Order granting the Application and dismissing a Protest filed by the Chester Water Authority. A majority of the Commission now adopts a staff recommendation that the Commission, on its own Motion, reconsider the Order granting the Certificate, re-publish notice of the Application in the Pennsylvania Bulletin and solicit comments or requests for an ''oral hearing,'' and reassign this matter to the Office of Administrative Law Judge if an oral hearing is requested. I respectfully dissent.

   While the Order adopted by the majority does not so state, the action taken in this Order appears to be based upon 66 Pa.C.S. § 703(f) or (g). I note that § 703 does not expressly authorize the granting of ''reconsideration.'' This raises the question whether the Commission's action granting reconsideration is pursuant to subsection (f), entitled ''Rehearing'' or to subsection (g), entitled ''Rescission and amendment of orders.'' To the extent that the grant of reconsideration is intended to be a grant of ''rehearing,'' I believe this action is flawed in that it is not based upon an allegation that ''new evidence'' exists. See West Penn Power Company v. PA PUC, 659 A.2d 1055 (Pa. Cmwlth. 1995).

   Commonwealth Court has equated a Commission Order granting reconsideration with an Order that rescinds and amends a prior Order. West Penn Power, supra, Abramson v. PA PUC, 489 Pa. 267, 414 A.2d 60 (1980). It is my understanding that the Order granting reconsideration in the present case is not intended to rescind the Commission's prior Order, because if it did, it would violate § 703(g) in that the Commission did not provide ''notice'' and an ''opportunity to be heard'' as required in that subsection.

   Accordingly, I do not believe that the Order granting reconsideration is authorized under § 703(f) or (g) of the Public Utility Code.

   In the alternative, assuming for the sake of argument that the present Order is authorized under § 703 of the Public Utility Code, I dissent for the reasons contained in my Statement with respect to OCT-2002-TSM-0146 2nd REV*, et al.

Recusal of Commissioner Aaron Wilson, Jr.

   I wish to be recused from consideration of this matter consistent with my prior role as Mayor of the City of Chester.

[Pa.B. Doc. No. 02-1933. Filed for public inspection October 25, 2002, 9:00 a.m.]


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