Mercury Trucking, Inc. v. PA PUC (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mercury Trucking, Inc., Petitioner v. Pennsylvania Public Utility Commission, Respondent BEFORE: : : : : No. 248 M.D. 2007 : Submitted: February 11, 2008 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: March 7, 2008 Before this Court are preliminary objections filed by the Pennsylvania Public Utility Commission (Commission) to a petition for review filed by Mercury Trucking, Inc. (Mercury) challenging the assessment levied against it by the Commission for the fiscal year from July 1, 2005, through June 30, 2006, pursuant to Section 510(b) of the Public Utility Code (Code), 66 Pa. C.S. §510(b). The Commission contends that Mercury s petition for review should be dismissed because it is precluded from challenging the amount of the assessment levied. This case was previously before this Court in our appellate jurisdiction.1 As we recounted in that appeal, Mercury is a Pennsylvania trucking company and 1 See Mercury Trucking, Inc. v. Pennsylvania Public Utility Commission, 923 A.2d 1244 (Pa. Cmwlth. 2007) (Mercury I). considered a public utility under Section 102 of the Code, 66 Pa. C.S. §102. Pursuant to Section 510(a) of the Code, 66 Pa. C.S. §510(a), all public utilities operating in Pennsylvania, including Mercury, are required to pay assessments levied by the Commission to cover its estimated costs of administering the Code. Commission s assessment methodology is a two-step process. The First, it must determine the amount to be assessed against all public utilities, and then the Commission must allocate the costs among groups according to Section 510(b) of the Code, 66 Pa. C.S. §510(b), which provides, in pertinent part: Allocation of assessment. On or before March 31 of each year, every public utility shall file with the commission a statement under oath showing its gross intrastate operating revenues for the preceding calendar year. If any public utility shall fail to file such statement on or before March 31, the commission shall estimate such revenues, which estimate shall be binding upon the public utility for the purposes of this section. (Emphasis added.) Mercury failed to timely file with the Commission a statement of its operating revenues for the period from January 1, 2004, to December 31, 2004, by March 31, 2005. When the Commission had not received the 2004 revenue report, it issued Mercury a notice of assessment and a general assessment invoice. Mercury paid the invoice, but alleging that the amount due was erroneous and excessive, filed an objection to the assessment and a petition for a refund for $12,242.98. The Law Bureau Prosecutory Staff (Prosecutory Staff) filed a motion to dismiss Mercury s petition, arguing that under Section 510(b) of the Code, if the public utility fails to file this statement, the Commission shall estimate such revenues, which estimate shall be binding upon the public utility for the purposes of this section. 2 The Administrative Law Judge (ALJ) assigned to the matter dismissed the Prosecutory Staff s objections, stating that pursuant to Section 510(b) of the Code, the Commission s assessment was binding on a public utility which failed to timely file its statement of revenue. He reasoned that this was so because, otherwise, there would be an inconsistency between Sections 510(b) and 510(c) of the Code2 as Section 510(b) mandated that the Commission s revenue estimates were binding, while Section 510(c) allowed a utility to challenge the assessments that had been generated by the Commission. The ALJ stated that the General Assembly did not intend such an unreasonable result. He also stated that the Prosecutory Staff s interpretation of Section 510(b) would thwart the right of a utility to bring an action against the Commonwealth to recover the amount of the assessment the utility paid upon the ground that the assessment was excessive, erroneous, unlawful, or invalid, and would violate Mercury s due process right to a hearing to contest the 2 66 Pa. C.S. §510(c) provides, in relevant part: Notice, hearing and payment.-The commission shall give notice by registered or certified mail to each public utility of the amount lawfully charged against it under the provisions of this section, which amount shall be paid by the public utility within 30 days of receipt of such notice ¦ Within 15 days after receipt of such notice, the public utility against which such assessment has been made may file with the commission objections setting out in detail the grounds upon which the objector regards such assessment to be excessive, erroneous, unlawful or invalid. The commission, after notice to the objector, shall hold a hearing upon such objections. After such hearing, the commission shall record upon its minutes its findings on the objections and shall transmit to the objector, by registered or certified mail, notice of the amount, if any charged against it in accordance with such findings, which amount ¦then due, shall be paid by the objector within ten days after receipt of notice of the findings of the commission with respect to such objections. (Emphasis added.) 3 Commission s revenue estimate. Concluding that Mercury was entitled to a hearing, the ALJ denied the Prosecutory Staff s motion to dismiss. The Commission reversed the ALJ s decision, determining that the language of Section 510(b) of the Code contained no ambiguity which would lead to alternate interpretations or constructions, and that Section 510(b) of the Code expressly stated that the failure of a utility to file its annual revenue report operated as a bar to it seeking to overturn the assessment. It also concluded that Sections 510(b) and 510(c) could be applied consistently as Section 510(c) permitted a utility to object to its general assessment, but Section 510(b) prevented a utility that had failed to timely file an annual revenue report from revisiting the revenue estimate once it had been generated by the Commission. Mercury then appealed that order to this court. In Mercury I, we determined that Mercury s appeal was not properly before the Court in our appellate jurisdiction because pursuant to Section 510(d) of the Code, 66 Pa. C.S. §510(d),3 any challenge to the Commission s assessment had to 3 66 Pa. C.S. §510(d) provides: No suit or proceeding shall be maintained in any court for the purpose of restraining or in any way delaying the collection or payment of any assessment made under subsections (a), (b) and (c), but every public utility against which an assessment is made shall pay the same as provided in subsection (c). Any public utility making any such payment may, at any time within two years from the date of payment, sue the Commonwealth in an action at law to recover the amount paid, or any part thereof, upon the ground that the assessment was excessive, erroneous, unlawful, or invalid, in whole or in part, provided objections, as hereinbefore provided, were filed with the (Footnote continued on next page ¦) 4 be brought in our original jurisdiction as an action at law. Pursuant to 42 Pa. C.S. §708,4 we then transferred the case to our original jurisdiction and directed the Commission to file a responsive pleading. The Commission then filed preliminary objections to Mercury s petition for review which are now before this Court. The Commission argues that Mercury cannot challenge its revenue assessment because it failed to timely file its statement of revenue under Section 510(b) of the Code. Therefore, the Commission argues that Mercury was forever barred by the mandatory language of that statute from later presenting the actual revenue figures to replace the Commission s estimate. We disagree. (continued ¦) commission, and payment of the assessment was made under protest either as to all or part thereof. In any action for recovery of any payments made under this section, the claimant shall be entitled to raise every relevant issue of law, but the findings of fact made by the commission, pursuant to this section, shall be prima facie evidence of the facts therein stated. Any records, books, data, documents, and memoranda relating to the expenses of the commission shall be admissible in evidence in any court and shall be prima facie evidence of the truth of their contents. If it is finally determined in any such action that all or any part of the assessment for which payment was made under protest was excessive, erroneous, unlawful, or invalid, the commission shall make a refund to the claimant out of the appropriation specified in section 511 as directed by the court. 4 42 Pa. C.S §708(b) provides: If an appeal is improvidently taken to a court under any provision of law from the determination of a government unit where the proper mode of relief is an action in the nature of equity, mandamus, prohibition, quo warranto or otherwise, this alone shall not be a ground for dismissal, but the papers whereon the appeal was taken shall be regarded and acted on as a complaint or other proper process commenced against the government unit or the persons for the time being conducting its affairs and as if filed at the time the appeal was taken. 5 Section 510(d) of the Code provides a public utility the right to challenge its revenue assessment. 66 Pa. C.S. §510(d) provides, in pertinent part, that [a]ny public utility making a payment may, at any time within two years from the date of payment, sue the commonwealth in an action at law to recover the amount paid, or any part thereof, upon the ground that the assessment was excessive, erroneous, unlawful or invalid, in whole or in part, provided objections, as hereinbefore provided, were filed with the commission, and payment of the assessment was made under protest as to either all or part thereof. (Emphasis added.) Section 510(c) of the Code does not preclude or prohibit a public utility from filing an action until the Commission issues a notice to the public utility. Under that section, all that the public utility must do is file its objections to the assessment and pay the Commission the assessed amount. Consequently, under the plain language of Section 510 of the Code, Mercury was authorized to file an action in our original jurisdiction within two years of being assessed by the Commission because it met the requirements under Section 510(c) of the Code. Accordingly, the Commission s preliminary objections are overruled. _____________________________ DAN PELLEGRINI, JUDGE 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mercury Trucking, Inc., Petitioner v. Pennsylvania Public Utility Commission, Respondent : : : : No. 248 M.D. 2007 : : : : ORDER AND NOW, this 7th day of March, 2008, the preliminary objections filed by the Pennsylvania Public Utility Commission are overruled. _____________________________ DAN PELLEGRINI, JUDGE
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