MASSACHUSETTS OILHEAT COUNCIL vs. DEPARTMENT OF PUBLIC UTILITIES & another.

MASSACHUSETTS OILHEAT COUNCIL vs. DEPARTMENT OF PUBLIC UTILITIES & another. [Note 1]

418 Mass. 798

March 8, 1994 - November 14, 1994

Suffolk County

Present: LIACOS, C.J., ABRAMS, O'CONNOR, & GREANEY, JJ.

The procedure of a party seeking an appeal under the provisions of G. L. c. 25, Section 5, from an order of the Department of Public Utilities, in filing a timely "petition for appeal" with the department's commissioners and thereafter in timely fashion filing an amended petition, but not the original, with this court, did not prejudice the department and intervener in any way so as to warrant the dismissal of the appeal. [799-802]

The Department of Public Utilities did not exceed its statutory authority by entering into special contracts for the sale of gas to certain customers at discount rates, where the provisions of G. L. c. 164, Section 94, clearly authorize the use of such special contracts [802-804], and the discriminatory effect of the special contracts did not invalidate their use where there was a rational basis for the department to negotiate them [804-805]. A decision of the Department of Public Utilities to employ special contracts, pursuant to its authority under G. L. c. 164, Section 94, to sell gas to certain customers at discount prices, was supported by adequate reasons; further, the department's findings were supported by substantial evidence and its method of analysis was not shown to be irrational. [805-807]

CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on June 1, 1993.

The case was reported by Nolan, J.

Robert M. Granger (Nicholas J. Scobbo, Jr., with him) for plaintiff.

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E. Michael Sloman, Special Assistant Attorney General (Michael B. Meyer, Special Assistant Attorney General, with him) for Department of Public Utilities.

Jennifer L. Miller (Catherine L. Nesser with her) for the intervener.

O'CONNOR, J. This case, which is before us on a reservation and report by a single justice, is an appeal pursuant to G. L. c. 25, Section 5 (1992 ed.), from a final order of the Department of Public Utilities (department). The appeal petition also asserts a right to a declaratory judgment pursuant to G. L. c. 231A (1992 ed.). The plaintiff, Massachusetts Oilheat Council (MOC), which is a trade association of fuel oil dealers, challenges the department's adoption of a regulatory framework authorizing Boston Gas Company (Boston Gas) to employ special contracts under G. L. c. 164, Section 94 (1992 ed.), to sell gas to noncore customers at discount prices. The department's regulatory framework recognizes "non-core customers" as customers with a ready access to alternative energy sources, such as oil. "Core customers" lack such access and require "firm service," which obligates the energy supplier to meet the customer's complete energy requirements on demand with rates traditionally based on the supplier's embedded costs.

The defendants argue that this court lacks statutory jurisdiction to entertain this appeal, and that the exercise of G. L. c. 231A declaratory relief powers would be an inappropriate substitute for statutory jurisdiction. General Laws c. 25, Section 5, provides in pertinent part as follows:

"When so requested by any party interested, the commission [the department is under the supervision and control of a commission; c. 25, Section 2] shall rule upon any question of substantive law properly arising in the course of any proceeding before the commission or any member or members thereof, and any party interested aggrieved by such ruling may object thereto, and may secure a review as hereinafter provided. . . . An appeal as to matters of law from any final decision, order or

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ruling of the commission may be taken to the supreme judicial court by an aggrieved party in interest by the filing of a written petition praying that the order of the commission be modified or set aside in whole or in part.

"Such petition for appeal shall be filed with the secretary of the commission within twenty days after the date of service of the decision, order or ruling of the commission, or within such further time as the commission may allow upon request filed prior to the expiration of the twenty days after the date of service of said decision, order or ruling. . . . Within ten days after such petition has been filed, the appealing party shall enter the appeal in the supreme judicial court sitting in Suffolk county by filing a copy thereof with the clerk of said court . . . .

"The record on appeal shall include one copy of the petition of the appellant or other original papers, and of the decision, order or ruling of the commission; . . .

"Each claim of appeal shall set forth separately and particularly each error of law asserted to have been made by the commission. Upon the entry of the appeal it shall be heard and determined by the court, which shall have jurisdiction to affirm, modify or set aside such decision, order or ruling of the commission in whole or in part, or remand the proceeding to the commission with instructions subject to review by the full court upon appeal." (Emphasis added.)

The department and Boston Gas contend that MOC did not comply with the highlighted statutory language and that therefore the appeal must be dismissed.

On May 20, 1993, within twenty days after the date of service of the commission's (department's) order, MOC filed a "petition for appeal." Then, on May 28, without seeking or obtaining leave to do so, MOC filed an amended petition with the department, and on June 1 filed that amended petition in the Supreme Judicial Court for Suffolk County. The

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original (unamended) petition was not filed in the county court until July, 1993. Therefore, the original petition was filed with the department in timely fashion and, within ten days after that filing, the amended petition was filed with the Supreme Judicial Court. The defendants would have us treat the amended petition for appeal as separate and distinct from the original petition, with the result that the original petition, having been filed in court more than ten days after it was filed with the department, was filed too late, and the amended petition, having been filed with the department more than twenty days after service of the department's order, was also filed too late. The result, the defendants argue, is that the Supreme Judicial Court lacks jurisdiction to entertain the appeal and the appeal should be dismissed.

We reject the defendants' jurisdictional argument. "Many older decisions viewed the requirements of the appeal process, as set out in court rules or statutes, as being jurisdictional with the result that failure to adhere to every requirement called for the dismissal of the appeal regardless of how inconsequential the breach. A more recent view recognizes that a rule of such harshness is not to be countenanced in modern jurisprudence." Cape Cod Bank & Trust Co. v. LeTendre, 384 Mass. 481 , 484 (1981). In Cape Cod Bank & Trust Co., supra, we quoted Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74 , 79-80 (1975), as follows:

"`Sloppiness in following a prescribed procedure for appeal is not encouraged or condoned, but at the same time a distinction is being taken between serious missteps and relatively innocuous ones. Some errors or omissions are seen on their face to be so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. A prime example is attempted institution of an appeal seeking judicial review of an administrative decision after expiration of the period limited by a statute or rule. . . . With respect to other slips in the procedure for judicial review, the judge is to consider how far they have interfered

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with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice. After such an assessment, the judge is to decide whether the appeal should go forward without more, or on terms, or fail altogether' (citations omitted)."

The procedure followed by MOC to obtain appellate review in this case did not prejudice the defendants in any way. We are satisfied that that procedure reasonably cannot be seen as "so repugnant to the procedural scheme" and "so destructive of its purposes" as to call for dismissal of the appeal. Having made that determination, we need not consider MOC's further argument that, in any event, it is entitled to proceed under G. L. c. 231A, the declaratory judgment statute. We shall decide the appeal under G. L. c. 25, Section 5.

MOC argues that the department's order establishing the mechanism by which Boston Gas may enter into special contracts with noncore customers must be set aside, first, because "the department exceeded its statutory authority in relinquishing its regulation of sales of gas and thereby subjecting the public to unlawful abuses of monopoly" and, second, because "the department's decision to relinquish control is not supported by substantial evidence or adequate reasons."

The statute governing special contracts is G. L. c. 164, Section 94 (1992 ed.), which provides in relevant part the following:

"Gas and electric companies shall file with the department schedules . . . showing all rates, prices and charges to be thereafter charged or collected within the commonwealth for the sale and distribution of gas or electricity, together with all forms of contracts thereafter to be used in connection therewith. Rates, prices and charges in such a schedule may, from time to time, be changed by any such company by filing a schedule setting forth the changed rates, prices and charges, but until

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the effective date of any such change no different rate, price or charge shall be charged, received or collected by the company filing such a schedule from those specified in the schedule then in effect;