York Telephone & Telegraph Co. v. Pennsylvania Public Utility Commission

Concurring and Dissenting Opinion by

Bhodes, P. J. :

I think the majority opinion limits the power of the commission to enforce, execute, and carry out the provisions of the Public Utility Law and the full intent thereof; and that it fails to adhere to the accepted principle that Ave shall not vacate or set aside an order of the commission, either in whole or in part, except for error of law or lack of evidence to support the finding, determination, or order of the commission, or violation of constitutional rights.

I concur in the conclusion of the majority that the penalty of $32,750 imposed for the failure to provide additional cable crews should be sustained. However, I cannot agree with the basis given for this conclusion. In my opinion, the penalty should be sustained on the ground that the utility, without justification, violated the specific order of the commission to provide the additional cable crews, and not, as the majority opinion indicates, because the absence of these crews was responsible for the failure to provide adequate and reasonable service to applicants. Under the circumstances, *32the nature of the service rendered would not be a proper inquiry in the penalty proceeding on this violation of the commission’s order. As to the $19,800 penalty for failure to provide service to twenty-two pre-1951 applicants, I agree that it cannot be sustained in its entirety. But I disagree with the majority that it is a duplication of the penalty imposed for failure to augment the cable crews, and I would sustain the imposition of this penalty to the extent of $1,100 because the utility failed in its statutory duty to provide adequate and reasonable service and facilities to the twenty-two applicants. See section 401, Art. IV, of the Public Utility Law of May 28, 1937, P. L. 1053, 66 PS 1171. It thereby subjected itself to a $50 penalty for each of the twenty-two violations, or a total of $1,100. See section 1301 (a) of the Public Utility Law, as amended, 66 PS 1491 (a).

The commission’s order of October 6, 1952, specifically ordered the utility to augment its cable crews within thirty days of the service of the order in accordance with the recommendation of the utility’s consulting engineer that three additional cable crews were necessary. The utility having taken no appeal from the commission’s order of October 6, 1952, is now precluded from attacking that order. Moreover, there was no justification shown for the failure of the utility to comply. The validity and the wisdom of the commission’s directive might have been questioned when it was made. It is too late to raise this question when a penalty is sought to be imposed for the utility’s noncompliance. It seems to me that the majority would reopen the inquiry relative to the original order to the extent at least of determining whether the failure to comply results in, or tends to result in, inadequate and unreasonable service. This procedure requires the commission, before imposing penalties of this nature, *33to determine again whether the conduct or corrections originally ordered would promote adequate and reasonable service for the public. The failure of the utility to explain its continued refusal to comply with the order of the commission was sufficient and proper reason to justify the penalty. When the commission, in accordance with section 902 of the Public Utility Law, 66 PS 1342, directed the utility to take certain action and the utility inexcusably failed to do so a penalty was properly imposed. I think that the commission’s order was clear; that it was duly entered by the commission for the purpose of promoting adequate and reasonable service for the public; that there was acquiescence in the order by the utility to the extent that no appellate review was sought; and that it was ignored to the extent that the utility failed to comply. I would therefore affirm the imposition of the penalty on this ground alone.

The other penalty of $19,800, imposed for the utility’s failure to provide service for twenty-two pre-1951 applicants, should be modified as I have indicated. But I think there is error in the majority opinion wherein it attributes the failure to supply service to these applicants to the utility’s neglect to provide the additional cable crews, and concludes therefore there was a duplication of the penalty imposed for failing to add the additional cable crews. As the majority opinion observes, no individual explanation whatsoever was given for the failure to supply service to twelve of these applicants. In regard to nine others, the utility offered the explanation that certain new equipment (subscriber-carrier equipment), 'which ivas substituted for the original plan to install lead-covered cable, failed to function properly and had to be replaced \Vith lead-Covered cable as had been recommended initially. The lack of three additional cable crews was not a mate*34rial factor in the failure to render service to any of the twenty-two applicants. Although it is commendable when a utility installs new and better equipment, there was nothing offered in the present proceeding to explain the long delay involved. As a matter of fact, this new equipment was not even acquired until after the date when the service should have been provided. It is significant that no explanation was given for the failure to fulfill the original plan to install lead-covered cable prior to the cut-off date. There was testimony that the remaining single application continued unfilled because of a lack of manpower. The record, however, is barren of any proof that it was the lack of three additional cable crews that was responsible for the delay in supplying service to these twenty-two applicants.

The witness who testified concerning these twenty-two applicants concluded that “as an overall proposition” all deferred applications predating 1951 could have been filled prior to April 6, 1955, if the utility had had more manpower. He did not indicate how much prior to this date these applications would have been filled, and there was no further elaboration by the witness of the word “manpower.” The term “manpower” is not synonymous with “cable crews.” The former is more comprehensive than the latter. The term “manpower” could include splicing crews, installers, engineers, or employes in other essential positions. In my opinion, the utility completely failed to explain why these twenty-two applicants did not receive adequate and reasonable service. At most, the statement by the witness that all deferred applications predating 1951 could have been filled prior to April 6, 1955, if the utility had more manpower, is vague and indefinite, and it certainly does not support a conclusion that these applicants did not receive the service to which *35they were entitled because the utility failed to add additional cable crews as directed by the commission’s order of October 6, 1952. To reach such a conclusion the majority has made the term “manpower” synonymous with “cable crews.” Had there been additional cable crews as ordered it does not follow on this record that service to the applicants would have been made available prior to the time they did receive service or prior to January 1, 1954, the final date found by the commission. No reasonable explanation having been given for the failure to render adequate and reasonable service to these applicants the commission was justified in imposing a penalty on the utility for this failure. It is mere conjecture to say that the lack of three additional cable crews caused this deficiency.

Although I would affirm the action of the commission in imposing a penalty under these circumstances, I would modify the amount of such penalty. It appears that the commission imposed the penalty for failure to supply these twenty-two applicants with service upon the premise that the commission by its order of October 6, 1952, found the utility’s service to be inadequate, inefficient, and unreasonable in this respect, and that the order specifically required the utility to eliminate this condition. The commission having-assumed that the utility violated its order proceeded to impose the penalty under section 1301 (b) of the Public Utility Law, as amended, 66 PS 1491 (b), which provides that each day’s continuance in the violation of any regulation or final direction, requirement, determination, or order of the commission shall be a separate and distinct offense. Based upon a continuation in the violation for 396 days (from January 1, 1954, through January 31, 1955), the penalty at $50 per day aggregated $19,800. Although the commission’s order of October 6, 1952, indicates that the utility’s service *36was found inadequate, inefficient, and unreasonable, the utility was never ordered to eliminate this condition within a reasonable time. The utility was merely required to submit to the commission a comprehensive statement of the results of its construction program that did, or would in the near future, eliminate the unsatisfactory condition. The utility having complied in this respect, it cannot now be said to have violated the commission’s order. If it had been the intention of the commission to require elimination of the unsatisfactory condition, it should have done so in clear and unambiguous language as it did in section 2 of its order of October 6, 1952, wherein it directed the utility to augment its cable crews. In that section of its order the commission said that the utility “shall . . . augment its cable . . . craftsmen in accordance with the recommendation of its consulting engineer.” I think the commission should have unmistakably ordered and directed the utility to eliminate the inadequate, inefficient, and unreasonable service within a reasonable time after service of its order.

Although, in my opinion, the utility did not violate the commission’s order of 1952, in this respect, nevertheless the commission in its order of August 8, 1955, did find that the utility’s service to these twenty-two applicants remained inadequate, inefficient, and unreasonable without satisfactory explanation therefor. This constituted a violation of the Public Utility Law. Section 401 of the Public Utility Law, 66 PS 1171, provides that “Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, . . .” The commission properly found that the utility failed to do so; and it was thus subject to the. penalty prescribed for such violation. Section 1301 (a) of the Public Utility Law, as amended, 66 PS 1491 (a), provides a penalty of $50 for violation *37of any of the provisions of the Public Utility Law; but, unlike the violation of an order of the commission as provided in section 1301 (b) of the Public Utility Law, as amended, 66 PS 1491 (b), the penalty did not accrue each day for the continued failure to remedy the deficiency as to service. The penalty should have been computed at $50 for each of the twenty-two unexplained failures to provide adequate, efficient, and reasonable service to the pre-1951 applicants. The failure to so provide service to each applicant was, in my opinion, a separate and distinct violation. The penalty to be imposed upon the utility would therefore be $32,750 for failure to comply with the commission’s ordejt* to provide additional cable crews, and $1,100 for failure to provide proper service to the twenty-two pre-1951 applicants, or a total of $33,850.

Judge Gunther joins in this opinion.