dissenting.
“Procedural fairness and regularity are of the indispensable essence of liberty.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 224, 73 S.Ct. 625, 635, 97 L.Ed. 956 (1963). “It is procedure that spells much of the difference between rule by law and rule by whim or caprice.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179, 71 S.Ct. 624, 652, 95 L.Ed. 817 (1951). I believe that the due process clause is not as flimsy an article as is suggested by the majority and would find the procedures employed by the Pennsylvania Public Utility Commission (PUC) for automatically “adjusting” electric rates1 to be fundamentally deficient in safeguarding the right of an electric utility’s customers to be free from deprivation of property without due process of law.
In the instant case, Allegheny Ludlum, appellant, has been deprived of approximately $3.5 million for at least one year by a determination of the PUC rendered in what was, essentially, an ex parte proceeding that did not afford appellant an opportunity to present objections in any form, either written or oral. Obviously, the PUC determination *80was made solely on the basis of the information contained in the papers filed by West Penn Power Company wherein West Penn proposed to increase its rates by some $75 million,2 although we are informed by the PUC that West Penn’s proposal was checked for accuracy by the PUC’s Bureau of Audits which prepared an internal report which was, we are further informed, reviewed by the Commissioners before they granted West Penn’s increase in full. Of course, in the absence of an on-the-record determination and/or written opinion, it is impossible for this Court to verify the accuracy of this information.
Such a procedure, it seems to me, smacks of the potential for the sort of arbitrariness against which the due process clause protects. Indeed, it “has long been recognized that ‘fairness can rarely be obtained by secret, one-sided determinations of facts decisive of rights. . . . ’” Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1988, 1994, 32 L.Ed.2d 556 (1972), quoting Joint-Anti Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 170, 71 S.Ct. at 647. Certainly, this case involves an adjudicatory determination of facts decisive to the need for a rate increase, as is candidly admitted by the PUC. (“The Commission concurs with appellant’s characterization of its ECR proceedings as being adjudicatory in nature where approval of West Penn’s 1982 ECR affects a specific rate increase directed toward a specific geographic area.” Brief for appellee PUC at 49-50.) This one-sided determination based upon an internal (i.e., unavailable to West Penn’s customers) report violates “well-settled principles governing the proceedings of rate-making commissions.” Railroad Commission v. Pacific Gas & Electric Co., 302 U.S. 388, 393, 58 S.Ct. 334, 337, 82 L.Ed. 319 (1938). In Pacific Gas & Electric Co., supra at 394, 58 S.Ct. at 338, the United States Supreme Court enunciated these “well-settled principles”:
*81The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement, (citations omitted) There must be due notice and an opportunity to be heard, the procedure must be consistent with the essentials of a fair trial, and the Commission must act upon evidence and not arbitrarily, (citations omitted).
Of course, the “essentials of a fair trial” need not include a full-blown evidentiary hearing with opportunity to examine and cross-examine witnesses and present oral argument. Due process is undoubtedly a flexible concept calling for such procedural protections as the particular situation, and the particular deprivation, demands. Pennsylvania Coal Mining Association v. Insurance Department, 471 Pa. 437, 449, 370 A.2d 685 (1977), quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).
However, the flexibility of due process enters into the calculation of “what process is due?”, not whether any process is due prior to a deprivation of a protected interest. See, c.g., Pennsylvania Coal, supra, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) and K.C. Davis, Administrative Law Treatise (Second Ed.), Chapter 13, Fair Informal Procedure (1979). The general rule is that, ordinarily, due process of law requires, prior to deprivation of protected interests, “some kind of a hearing” with opportunity for affected parties to be heard. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978); Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 299, 101 S.Ct. 2352, 2371, 69 L.Ed.2d 1 (1981). Only in “extraordinary” circumstances, Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971), and/or “emergency situations”, Hodel, supra 452 U.S. at 300, 101 S.Ct. at 2372, has the United States Supreme Court sanctioned the deprivation of rights without some prior procedural protections. These extraordinary and/or emergency situations must be “truly unusual”. Fuentes v. Shevin, supra 407 U.S. at 90-91, 92 S.Ct. at 1999. See, e.g., Hodel, supra 452 U.S. at 299-303, *82101 S.Ct. at 2371-2374. Neither West Penn nor the PUC suggest that there is an extraordinary or emergency aspect to the rate increase situation presented herein. Indeed, the automatic “adjustment” is a normal, routine PUC procedure. This Court must not countenance such routine disregard for the utility customers’ constitutional guarantees of due process.
The failure of the majority to require “some process” prior to the deprivation of appellant’s substantial property interests can be traced to the mistaken notion that the constitution recognizes merely a “preference . . . for procedural protections effective prior to governmental action that threatens to deprive citizens of their interests. . .. ” At 1221. Operating under that erroneous impression, the majority then is lulled into a relaxed state of vigilance by the existence of subsequent PUC proceedings in “adjustment” cases and the provisions for refunds in the case of excessive rates. Most emphatically, I must stress that prior procedural protections are not simply a “preference” — rather, prior procedural protections of some form are an essential constitutional prerequisite to governmental deprivation of protected interests, subject only to the extraordinary and emergency situation exceptions noted previously, which are not present in this case.
In Fuentes v. Shevin, supra, 407 U.S. at 80-82, 92 S.Ct. at 1994H995, the United States Supreme Court set forth several pertinent principles which (should) govern our decision today:
For more than a century the central meaning of procedural due process has been clear: “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” (citations omitted) It is equally fundamental that the right to notice and an opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” (citation omitted)
*83The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private party.
If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. “This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone.” (citation omitted).
This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing “appropriate to the nature of the case,” (citation omitted) and “depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any],” (citation omitted), the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect, (emphasis added).
For the foregoing reasons, I would hold that the PUC “adjustment” procedures under section 1307, § 66 Pa.C.S.A. *84§ 1307, are constitutionally infirm. I would further hold that, under the circumstances of this case, minimum due process requires the procedures (and protections) urged upon this Court by appellants, namely advance notice, access to supporting data, an opportunity to be heard at least by way of written objections, and a determination on the record which responds to those objections. Such informal procedures need not be elaborate and need not be unduly time-consuming. The time-frame of the instant case — six weeks from filing proposed increase until effective date of increase — proved more than adequate time to accommodate these minimum procedural requirements. As Professor K.C. Davis has stated, Administrative Law Treatise, supra, § 10:1, “balancing to guide the choice between Goss procedure [the author’s term, from Goss v. Lopez, supra, for fair informal administrative procedure] and no procedural protection for a party almost always leads to a choice of Goss procedure because the cost to the government of providing a summary of evidence and receiving a written or oral response [from adversely affected parties] is so slight.”
McDERMOTT, J., joins in this dissenting opinion.. Pursuant to section 1307(c) of the Public Utility Code, 66 Pa.C.S.A. § 1307(c) and the PUC’s Energy Cost Rate formula.
. In contrast, in West Penn’s preceding general rate increase case, PUC Docket No. R-80021082, the PUC granted a rate increase of some $47.4 million after nine months of investigation, public hearings and consideration of evidentiary data filed by both the utility and its customers.