Pennsylvania Petroleum Ass'n v. Pennsylvania Power & Light Co.

Concurring Opinion by

President Judge Bowman :

The majority has quashed a petition for review in the nature of an appeal by the Pennsylvania Petroleum Association (PPA) from an adjudication of the Pennsylvania Public Utility Commission (PUC) in a rate proceedings for the reason that the competitive injury assertedly suffered by petitioner as to a class of rates for which an increase was sought by a utility and approved by the PUC is an inadequate interest to confer upon a party the necessary standing to appeal the adjudication. I concur in the result, as I *28am of the view that the particular interest sought to be asserted by petitioner before the PUC is not cognizable in a rate proceedings.

The troublesome area of one’s standing to appeal, which in turn involves concepts of one’s status below and of aggrievement — a satisfactory and clear resolution of which has long eluded the case law on the subject — compels me to comment further in this case as I do not wholly subscribe to the majority opinion.

Often ignored as the essential point of departure from which standing issues must be resolved is the distinction between standing to initiate or participate in a quasi-judicial or judicial proceeding and standing to seek judicial review or further judicial review. The former requires a real party in interest as well as concrete, adverse interest. The latter entails concepts of reviewability and requires a final, appealable order as well as an “aggrieved” party. When addressing reviewability, one speaks to the jurisdiction of the courts and their power to hear the case.

I agree with the majority that the action or inaction of parties below should not be permitted to enlarge or diminish the class of persons entitled to seek judicial review, as that class is defined by Pa. R.A.P. 501.1 When, however, a party is permitted to appear initially, and no objection is made to such appearance, then that issue cannot be raised on appeal. Wynne*29wood Civic Association v. Lower Merion Township Board of Adjustment, 406 Pa. 413, 179 A.2d 649 (1962); Baker v. Zoning Hearing Board of West Goshen Township, 27 Pa. Commonwealth Ct. 602, 606, 367 A.2d 819, 821 (1976).2

As I define the term “aggrieved,” a qualified party, asserting a protected interest, is necessarily aggrieved by an adverse decision of the Commission. Baker v. Zoning Hearing Board of West Goshen Township, supra, at 608, 367 A.2d at 822. To this extent, then, the concept of standing is incorporated into reviewability.

Essentially, “the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. . . . [Its] dimensions [are] founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498 (1975) (citation omitted). “Where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action. The whole drive for enlarging the category of aggrieved ‘persons’ is symptomatic of that trend.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 154 (1970).

The test applied in these cases accords standing where the plaintiff has suffered (or will suffer) “in*30jury in fact” and the interest he seeks to protect is “arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question.” See Association of Data Processing Service Organizations, Inc. v. Camp, supra at 153; see also Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); Wilt v. Beal, 26 Pa. Commonwealth Ct. 298, 363 A.2d 876 (1976).

Bather than apply this test, the majority would require explicit statutory protection of competitive interests. By making a privilege-creating statute a sine qua non for interest standing, the majority opinion represents a restatement of the “legal right” requirement which does not appear to be sanctioned by recent opinions of the United States Supreme Court and our Supreme Court.3

PPA contends that the rate schedules of PP&L unjustly and unreasonably exclude competition in certain heating markets by distributors of other sources of energy, PPA members included. By proposing rates unrelated to the actual cost of services within the markets concurrently served by PPA, PP&L would allegedly be requiring certain other customer classes to not only subsidize the lower-rated customers, but also subsidize a competitive advantage enjoyed by PP&L over alternative distributors unrelated to market efficiency.

When a supplier of a competitive product alleges such an injury to his economic well-being, which arises as a direct consequence of the market activities of the competing public utility and its rate schedule as sanctioned by the responsible governmental agency, then *31I believe that supplier has alleged a sufficiently substantial, direct and immediate “injury in fact” to confer upon it interest standing. Cf. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, supra.4

A rate proceeding would appear, however, to be an improper proceedings in which to assert such a competitive interest. Approval of a proposed rate increase is made dependent upon that rate’s fair, just, reasonable and nondiseriminatory nature vis-a-vis the public qua consumer.5 Bate cases are to be given preference over all other proceedings and are to be decided as speedily as possible.6 Consequently, we should carefully guard against the entrance of collateral issues into these proceedings, see, e.g., N.A.A.C.P. v. P.U.C., 5 Pa. Commonwealth Ct. 312, 290 A.2d 704 (1972), and have held that the rights to be protected *32in these proceedings, are the rights of the complainants as consumers. See, e.g., Pennsylvania Public Utility Commission v. Commonwealth, 23 Pa. Commonwealth Ct. 566, 353 A.2d 887 (1976).

On the other hand, the Public Utility Law provides for the filing of a formal written complaint setting forth any act or thing done or omitted to be done by a public utility in violation of any law which the commission has jurisdiction to administer or of any regulation or order of the commission.7 Subsequent notice, hearing and adjudication,8 provide a much more satisfactory procedure for resolution of claims such as those presented by PPA, than does a rate proceeding.

Thus, even though there might otherwise exist a sufficiently direct and immediate “injury in fact” to afford one standing in a given proceedings, I would add another dimension and deny such standing in a proceedings devoted to a particular purpose not related to the interest asserted. For this reason I concur with the result of the majority opinion.

Rule 501 of the Pennsylvania Rules of Appellate Procedure defines the class of persons entitled to appeal:

Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.

The official comment enlarges somewhat the concept of “aggrievement” :

Whether or not a party is aggrieved by the action below is a substantive question determined by the effect of the action on the party, etc.

See Pa. R.A.P. 1551, Scope of Review:

(a) Review of quasi-judicial orders. — Review of quasi-judicial orders shall be heard by the court on the record. No question shall be heard or considered by the court which was not raised before the government unit except:
(1) Questions involving the validity of a statute.
(2) Questions involving the jurisdiction of the government unit over the subject matter of the adjudication.
(3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit.

See also Pa. R.A.P. 302.

Expressly repudiated for federal purposes in Association of Data Processing Service Organizations, Inc. v. Camp, supra, and implicitly for Pennsylvania in Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, supra; Wilt v. Beal, supra, and companion cases.

PP&L has also questioned the standing of PPA, as an association, to assert the individual interests of its members. Prior law, which required the assertion of a “legal right,” would have denied PPA “party standing.” See, e.g., Penn-Harris Hotel Co. v. Pennsylvania Public Utility Commission, 166 Pa. Superior Ct. 394, 71 A.2d 853 (1950). The modern trend is different:

Even in the absence of injury to itself, an association may have standing solely as the representative of its members. . . . The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought the suit. (Citations omitted.)

Warth v. Seldin, supra at 511; Boston, Stock Exchange v. State Tax Commission, U.S. , 50 L. Ed. 2d 514 (1977) ; cf. Pennsylvania Coal Mining Ass’n v. Insurance Dep’t, Pa. , 370 A.2d 685 (1977).

See Sections 301-09 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. §§1141-49.

52 Pa. Code §3.162; Section 312 of the Public Utility Law, 66 P.S. §1152.

52 Pa. Code §3.121; Section 1001 of the Public Utility Law, 66 P.S. §1391.

See Sections 1001-14 of the Public Utility Law, 66 P.S. §§1391-1404.