dissenting. I agree with my Brother Paolino’s dissent and supplement it with the following. The majority look to Federal Appellate Rule 8 upon which our own Rule 8 is patterned for the criteria to be followed in determining whether, pending review, we should stay a PUC judgment or order.1 In my opinion they look to the wrong place, and should instead have been guided by G.L. 1956 (1969 Reenactment) §39-5-4, as enacted by P.L. 1969, ch. 240, §8. That legislation provides that a PUC order or judgment is not auto*947matically stayed upon a transfer of the case to this court for review, but that it may be stayed “with or without terms or conditions as justice and equity require * * (Emphasis added.)
Edwards & Angell, Edward F. Hindle, Deming E. Sherman, for petitioner. Julius *948C. Michaelson, Attorney General, R. Daniel Prentiss, Special Asst. Attorney General, for respondents. Roberts & Willey, Ronald C. Markoff, for Rhode Island Consumers’ Council.*947Under that standard “justice and equity” will be served, rather than disserved, if Narragansett is allowed to pass through to its customers, subject to refund, the approximately $750,000 more per month which under an FPC order it is currently paying for purchased power. To arrive at that conclusion does not require “an exercise in sheer speculation”; and indeed in my judgment to conclude otherwise and to refuse to recognize the negative impact on Narragansett’s earning capacity of so substantial an increase in its operating expenses is to ignore reality. In support I need not refer to Narragansett’s evidence of the potentially catastrophic effect of the PUC’s action on its ability to earn the rate of return heretofore allowed.2 Instead, I rely upon (1) PUC order 407 establishing a formula whereby Narragansett, without the PUC’s permission and subject to the commission’s right to suspend,3 may increase its prices to reflect FPC approved increases in the wholesale cost of purchased power; and (2) the prepared testimony of the PUC’s own expert. That testimony, according to the uncontradicted statement of Narragansett’s counsel made during oral argument, is to the effect that because of the increase in purchased power costs, Narragansett is entitled to an annual surcharge of close to $5,300,000 if it is to achieve the rate of return contemplated by the PUC’s most recently completed rate case. To deny Narragansett the opportunity to achieve that return is not only unjust and inequitable, but confiscatory. See generally New England Tel. & Tel. Co. v. Department of Pub. Util. Mass., 354 N.E.2d 860 (1976).
None of the eases cited by the majority in support of this principle is a rate case.
Subsequent to the oral arguments in this 'court the local press reported that Narragansett had passed its dividend for the first time since 1929.
The right to suspend was exercised in this case.