Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Supplemental Brief on Rehearing of Plaintiffs-Appellants, Cross-Appellants
Public Court Documents
April 30, 1985

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Brief Collection, LDF Court Filings. Jackson v. Metropolitan Edison Company Brief for the Petitioner, 1974. 73f3f7df-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/fc3287bb-4f0d-438a-bf3a-2f424c12ffc5/jackson-v-metropolitan-edison-company-brief-for-the-petitioner. Accessed April 28, 2025.
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SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1974 No. 73-5845 CATHERINE JACKSON, On Behalf of Herself and All Others Similarly Situated, Petitioner, v. METROPOLITAN EDISON COMPANY, a Pennsylvania Corporation, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE PETITIONER ALAN LINDER, Esquire EUGENE F. ZENOBI, Esquire J. RICHARD GRAY, Esquire Tri-County Legal Services 53 North Duke Street - Suite 457 Lancaster, Pennsylvania 17602 (717) 397-4236 Attorneys for Petitioner Of Counsel: JONATHAN M. STEIN, Esquire Community Legal Services 313 South Juniper Street Philadelphia, Pennsylvania 19107 Washington, D C. • C L 8 PUBLISHERS' » LAW PR INTING CO • (2021 393 0625 TABLE OF CONTENTS (i) OPINIONS B E LO W ................................. j JURISDICTION.................................................. .. . . . ..................2 STATUTES, REGULATIONS AND TARIFFS INVOLVED ................................................................................. 2 QUESTIONS PRESENTED FOR REVIEW .............................. 3 STATEMENT OF THE C A S E ................................ ................... 4 SUMMARY OF ARGUMENT ............... 7 ARGUMENT I. Respondent Acts Under Color of State Law When it Terminates Petitioner’s Electrical Services for Nonpayment of a Disputed Bill. . . . . . . . 1 2 A. Respondent is a state sanctioned mono poly which performs a public function and which acts in joint participation with the state under extensive state regulation....................... ................... .. 13 1. Respondent is a state sanctioned monopoly, placed by the state in a position of favored economic pow er....... .................................................................. 13 2. Respondent performs an important public function, in the supplying of essential electrical services............................... . 15 3. Respondent acts in joint participa tion with the state, under extensive state regulation, in pursuing mutual goals under a statutory obligation 1 to furnish “reasonably continuous” electrical services, from which mu tual benefits are derived.............. ......................; 21 Page (a) B. The Commonwealth of Pennsylvania is directly involved in the Respondent’s termination activities because it has specifically authorized, encouraged and approved such activities, and because it has delegated its statutory responsibility to the Respondent to determine the lawfulness of its own challenged termin ation practices ........................................................... 27 1. The Commonwealth of Pennsyl vania has specifically authorized and approved the Respondent’s challenged termination action........................... 27 2. The Commonwealth of Pennsyl vania has specifically encouraged the Respondent’s termination prac tices. ......................... 31 3. The Commonwealth of Pennsyl vania has delegated to Respondent the Public Utility Commission’s statutory responsibility to assure that customers are not arbitrarily and unlawfully deprived of “reason ably continuous” electrical services.................. 33 II. Due Process of Law Requires That Before Petitioner’s Essential Utility Services May be Terminated, Petitioner must be Provided with Adequate Prior Notice and Opportuni ty to be Heard. ................................... 36 A. Due process of law is necessary in order to prevent the arbitrary and erroneous deprivation of a statutorily conferred entitlement or property right essential to life and health. Page 36 (Hi) B. Due process of law for utility termina tions requires adequate prior notice of the nature and means of resolution of the dispute, and an opportunity for an oral hearing prior to the termination of essential utility services.................................. .. . . . 41 CONCLUSION .............................. .47 APPENDIX A. Statutes, Regulations and Tariffs Involved .................. la B. Newspaper Articles Boston Globe, February 9, 1974 ....... .........................lb The New York Times, December 26, 1973 ................. 2b TABLE OF AUTHORITIES Cases: Adickes v. S.H. Kress Co., 398 U.S. 144 (1970) ....................31 American Communications Ass’n v. Douds, 339 U.S. 382 (1950) 25 Armstrong v. Manzo, 380 U.S. 545 (1965) ....................... 36, 42 Baldwin v. Hale, 68 U.S. 233 (1863) ........................................36 Baldwin v. Morgan, 287 F.2d 750 (C.A. 5, 1961) ..................19 Bell v. Burson, 402 U.S. 535 (1971) ...........................11, 36, 37 Board of Regents v. Roth, 408 U.S. 564 (1972) . 11, 37,41,46 Boddie v. Connecticut, 401 U.S. 371 (1971) ...............21, 36, 42 Boman v. Birmingham Transit Co., 280 F.2d 531, (C.A. 5, 1960) .............................................................. 16, 34 Bronson v. Consolidated Edison of New York, 350 F.Supp. 443 (S.D.N.Y., 1 9 7 2 ) ........................... .................... 12, 16, 20, 27, 32, 35, 37, 39, 40, 42, 43, 44, 45 Buffington v. Gas Service Co., -F.Supp.- (W.D., Mo., W.D., 1973) .................................................................... 27,32 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) ................................ 7, 9, 11, 12, 15, 21, 24, 34 Page California Department of Human Resources v. Java, 402 U.S. 121 (1971) ............................................................41 Citizens Water Co. of Washington, Pa. v. Pa P.U.C., 171 Pa. Super. 301, 124 A.2d 123 (1956) ____. . . . . 34 City of Pittsburgh v. Pa. P.U.C., 182 Pa. Super 551, 128 A.2d 372 (1957) .......... .................................. .. 24 Columbia Broadcasting System v. Democratic National Committee, 36 L.Ed.2d 772 (1973) .......... 18, 24 Columbo v. Pa. P.U.C., 159 Pa. Super 483, 48 A.2d 59 (1946) . ...................................................................... . 18 Cooper v. Aaron, 358 U.S. 1 (1958) ................................. 19 Covey v. Town of Somers, 351 U.S. 141 (1956) ............. .. . 43 Cray v. Pa. Grayhound Lines, 177 Pa. Super. 275, 110 A.2d 892 (1955) .................... ........................ 9 ,25,29 Crews v. Jacksonville Electric Authority, Poverty Law Reporter, §13,647 (Fla Cir. Ct„ 1971) ............ .. . 40 Davis v. Weir, 328 F.Supp. 317, 359 F.Supp. 1023 (N.D., Ga., 1971, 1973) . ...........................16, 17, 20, 37,43 Dielen v. Levine, 344 F.Supp. 823 (D., Neb., 1972) .......... 20 Evans v. Newton, 382 U.S. 296 (1966) ..............................8, 19 Farmer v. Moses, 232 F.Supp. 154 (S.D.N.Y., 1964) .............19 Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) .................... .................................... .19 Fuentes v. Shevin, 407 U.S. 67 (1972) .................... ............... ............11,14, 20,35, 36, 37, 39, 40, 42, 43, 45, 46 Gas Light Co. of Columbus v. Georgia Power Co., 440 F.2d 1135 (C.A. 5, 1971) cert, den., 405 U.S. 969 (1972) ................................ .................................. 14 Goldberg v. Kelly, 397 U.S. 254 (1970) . 11, 36, 37, 40, 41, 44 Grannis v. Ordean, 234 U.S. 385 (1914) ................................ 42 Griffins v. Illinois, 378 U.S. 1 (1 9 5 8 )......................... .. .41 Gross v. Fox, 349 F.Supp. 1164 (E.D. Pa., 1972) .......... .. . . 20 ( i v ) Page Hall v, Garson, 430 F.2d 430 (C.A. 5, 1970) ......................... 20 Hampton v. City of Jacksonville, 304 F.2d 320 (C.A, 5, 1962) .............................................................. . . . 1 9 Hattell v. Public Service Co. of Colorado, 350 F.Supp. 240 (D., Colo., 1972) ...........................................27 Hernandez v. European Auto Collision, Inc. 487 F.2d 378 (C.A. 2, 1973) ....................... ................... . . . . 2 0 Hill v. Toll, 320 F.Supp. 185 (E.D., Pa., 1970) . .................... 20 Ihrke v. Northern States Power Co., 459 F.2d 566 (C.A. 8, 1972) cert, granted, vacated as moot, 34 L.Ed. 2d 72 (1972) . ............... .. 8, 9, 16, 20, 26, 27, 30 Jackson v. Metropolitan Edison Co., 348 F.Supp. 954 (M.D., Pa., 1972) affirmed 483 F.2d 754 (C.A. 3, 1973) ...........................................„ ...........................1 Jones v. City of Portland, 245 U.S. 217 (1917) .................................................. .. 8, 13, 14, 15, 16, 37 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) . .......................................... .. .42 Kadlec v. Illinois Bell Telephone Co., 407 F.2d 624 (C.A. 7, 1969) cert, den., 396 U.S. 846 (1969).......... 19, 24 Klim v. Jones, 315 F.Supp. 109 (N.D., Cal., 1 9 7 0 )................. 20 Lamb v. Hamblin, Util. L.Rep. (State) §21, 850 (D. Minn., Nov. 30, 1972) ......................................................... 37 Lathrop v. Donohue, 367 U.S. 820 (1961) ......................... 7, 15 Lavoi v. Bigwood, 457 F.2d 7 (C.A. 1, 1972) ...................... .15 Lucas v. Wisconsin Electric Power Co., 446 F.2d 638 (C.A. 7, 1972) cert, den., 34 L.Ed. 2d 696 (1 9 7 3 ) ................................................................... .. .19, 37, 45 Lynch v. Household Finance Corp., 405 U.S. 538 0 9 7 2 ) ................................ ................................................... 34 McCabe v. Atchison, Topeka and Santa Fe R. Co., 235 U.S. 151 (1914) (v) Page 10, 31 (vi) McQueen v. Drucker, 438 F.2d 781 (C.A. 1, 1971) ...............19 Marsh v. Alabama, 326 U.S. 501 (1946) .................... .. 8,19 Mason v. Garriss, 360 F.Supp. 420 (N.D., Ga., 1973) .20 Martin v. Pacific Northwest Bell Telephone Co,, 441 F.2d (C.A. 9, 1971) 19 Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (C.A. 6, 1968) .........................19 Moose Lodge 107 v, Irvis, 407 U.S. 163 (1972). 12, 16, 24, 27, 37 Morrissey v. Brewer, 408 U.S. 471 (1972) .............................. 44 Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) ................................................................ .42 Munn v. Illinois, 94 U.S. 113 (1877) ............................ 8, 14, 15 Nebbia v. New York, 291 U.S. 502 (1934) .............................. 14 New York Times v. Sullivan, 376 U.S. 245 (1 9 6 4 ) ................. 31 Nixon v. Condon, 286 U.S. 73 (1932) .............................. 19, 31 Palmer v. Columbia Gas of Ohio, 342 F.Supp. 241 (N.D., Ohio, W.D., 1972) affirmed 479 F.2d 153 (C.A. 6, 1973) ............................................. . . 8, 10, 11,12, 16, 17, 20, 27, 30, 31, 37, 38, 39, 42, 43, 44 Particular Cleaners, Inc. v. Commonwealth Edison Co., 457 F.2d 189 (C.A. 7, 1972) cert, den., 34 L.Ed. 2d 148 (1972) ............................................................19 Pendrell v. Chatham College, 42 L.W. 2429 (W.D., Pa., 1974) ........................... .................................................30 Perry v. Sindermann, 408 U.S. 593 (1972) ............... 37, 41 Public Utilities Commission v. Poliak 343 U.S. 451 (1952) ............................ .................................... 10, 24, 28, 29 Railway Employees Department v. Hanson, 351 U.S. 225 (1956) ............................................... 7,15,31 Reitman v. Mulkey, 387 U.S. 369 (1967) ......................... 10, 31 Page Page Ridley Township v. Pa. P.U.C., 172 Pa. Super. 472, 94 A.2d 168 (1953) ........................................................... 18 Salisbury v. New England Tel. and Tel. Co., 2 Pv. Law Rep. §18, 546 (D., Conn., Nov. 7, 1 9 7 3 )..................27 Shepard v. Milwaukee Gas Light Co., 6 Wis. 526 (1 8 5 8 ) ................................................................................ . .14 Smith v. Allwright, 321 U.S. 649 (1944) .......... ..................... 19 Smith v. Holiday Inns of America, 336 F.2d 630 (C.A. 6, 1964) ............. ........................ .............................19 Southwestern Bell Telephone Co. v. Batesmar, 266 S.W.2d 289 (Ark., 1954) ___ _____ _ .................... . ,40 Stanford v. Gas Service Co., 346 F.Supp. 717 (D., Kan., 1972) .......................................... 16 ,17 ,20 ,23 ,32 ,37 Stanley v. Illinois, 405 U.S. 645 (1972) ........................... 12, 46 Taglianetti v. New England Tel. and Tel. Co., 81 R.I. 351, 103 A.2d 67 (1 9 5 4 ) ................. .......................... 19 Terry v. Adams, 345 U.S. 461 (1953) ......................... .. 19 Tyrone Gas and Water Co. v. Public Service Commission, 77 Pa. Super 292 (1921) ................................... 40 United States v. Guest, 383 U.S. 745 (1966) ............................21 United States v. Price, 383 U.S. 787 (1966) .................... 21 United States v. Wiseman, 445 F.2d 792 (C.A. 2, 1971) 20 Washington Gas Light Co. v. Virginia Electric and Power Co., 438 F.2d 248 (C.A. 4, 1971)............ .. . 10, 14, 30 Wood v. City of Auburn, 87 Me. 287, 32 A. 906 (1 8 9 5 ) ..........................................................................14,17,44 York Telephone and Telegraph Co. v. Pa. P.U.C., 181 Pa. Super 11, 121 A.2d 605 (1956) ............................... 40 Constitution o f the United States: Fourteenth Amendment (Due Process Clause) ...................... 4, 11 Statutes: Federal Statutes Civil Rights Act of 1871 42U.S.C. §1983 ............... ....................................... .2 ,4 , 31 United States Code 28 U.S.C. §1254(1) . .................. ....................................... 2 28 U.S.C. §1343(3) and (4) ............................................. 2 28 U.S.C. §2101 ( c ) ............................................................ 2 Pennsylvania Statutes Public Utility Law 66 Pa. Statutes Annotated Page § 4 5 1 ............ 2 §452 ................................................................................ 18 § 1 1 0 1 ...................................................................2, 18, 31 § 1 1 2 1 ......................................................7, 9, 13,22, 24 §1122 .................................................. .. 2, 10, 13, 32, 33 § 1 1 2 3 .........................................................................13,22 § 1 1 2 4 .......................................................................... 9,25 §1141 . . . ............................................. 9, 18,21,22, 24 § 1 1 4 2 ..................................... ........................ . . . . 9, 22 § 1 1 4 4 ......... 22,37 § 1 1 4 8 .............................. 10 §1171 . . . 2, 8, 9, 10, 18, 21, 22, 24, 25, 28, 33, 37, 41 §1172 ................................................................... 22 §1182 .................................................... 22,33 §1183 ...................................................................... 22,33 § 1 2 1 1 ............... ............................. ............................... 22 § 1 2 1 7 ................................ 22 §1241 .................................. 22 §1271 .............................. .22 §1276 ............................................. 22 §1341 .......................................... 2, 9, 18,23,28, 29,33 §1342 ............................................... 23, 28 §1343 .................... .........................................................28 §1345 ................. 23 §1347 ............................................ 23, 28 §1348 ...............................................................................29 §1360 ........................................................................ 9, 23 § 1 3 9 1 .......... 23 §1395 ............................................. 23 §1398 .................................. 23 Utilities Gross Receipts Tax 72 Pa. Stat. Annotated §8101 .......................................................................... 9,26 Kansas Statutes Annotated K.S.A. §66-101......................................................................... 23 Miscellaneous: Regulations Public Utility Commission Regulations P.U.C. Electric Regulations Rule 14D . . . . . .............................................. 3 ,9 ,25 ,32 P.U.C. Tariff Regulations Section I I ............................................................2, 10, 29 Section VIII ......................................3, 10, 28, 29, 32, 33 Metropolitan Edison Electric Tariff Electric Pa. P.U.C. No. 41, Rule 15 ...............3, 28, 29, 32 ( i x ) Page (X) Law Review Articles Arterburn, “The Origin and First Test of Public Callings” , 75 U. Pa. L.Rev. 411 (1927) ............... ........... 14 Barnes, “Government Regulation of Public Service Corporations” , 3 Marquette L.Rev. 65 (1919) ..................15 Burdick, “The Origin of the Peculiar Duties of Public Service Companies” , 11 Col. L.Rev. 514 (1 9 1 1 ) ..................................................................................... 13, 17 “Constitutional Safeguards for Public Utility Customers: Power to the People” , 48 N.Y.U. L.Rev.493 (1973) .................................................. 15,39,44 “Fourteenth Amendment Due Process in Termina tions of Utility Service for Nonpayment” , 86 Harvard L.Rev. 1477 (1973) ........................... 25, 39,40, 46 “Public Utilities and the Poor, 78 Yale L.J. 48 (1 9 6 9 ) ................................................................................... 38 Shelton, “Shutoff of Utility Services for Non payment; A Plight of the Poor” , 46 Wash. L.Rev. 745 (1971) 38,45 Wyman, “The Law of Public Callings as a Solution to the Trust Problem”, 17 Harvard L. Rev. 156 (1904) .................................................. 14, 18 Books and Treatises Hale, De Portibus Maris, 1 Harg. Law Tracts 78 ..................15 Moody’s Public Utility Manual, §38 (1972) ....................... 15 Wyman, Public Service Corporations (1911) 15 Newspaper Articles Tragedies: A Winter’s Tale, Newsweek, p. 28 (Jan. 8, 1974) .............................................................. Page 17, 38 (xi) Man, Seventy-one, Freezes to Death After Utility Shuts Off Gas, United Press International, appearing in Boston Globe, (Feb. 9, 1974), p. 17 ........................................................................ Elderly Couple Found Frozen in Syracuse Home, The New York Times, Dec. 26, 1973.................. Publications Report of the National Advisory Commission on Civil Disorders (1968) .................... ................... Page 17,38 8,38 40 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1974 No. 73-5845 CATHERINE JACKSON, On Behalf of Herself and All Others Similarly Situated, Petitioner, v. METROPOLITAN EDISON COMPANY, a Pennsylvania Corporation, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE PETITIONER OPINIONS BELOW The Memorandum and Order of the District Court, dated June 30, 1972, dismissing Petitioner’s Complaint, appears in the Appendix (A-64-73) and is reported at Jackson v. Metropolitan Edison Co., 348 F.Supp. 954 (M.D., Pa., 1972). The Judgment and Opinion of the 2 Third Circuit Court of Appeals dated August 21, 1973, affirming the decision of the District Court, appears in the Appendix (A-76-92), and is reported at 483 F.2d 754 (C.A. 3, 1973). JURISDICTION Jurisdiction of the Court below was invoked pursuant to 42 U.S.C. §1983 and 28 U.S.C. §1343(3) and (4). Petitioner’s petition for rehearing before the court en banc was denied by the Third Circuit Court of Appeals by Order dated October 25, 1973, without opinion, and appears in the Appendix (A-93). The petition for writ of certiorari was docketed on December 3, 1973 and was timely filed pursuant to 28 U.S.C. §2101(c). This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1254(1). STATUTES, REGULATIONS AND TARIFFS INVOLVED Pertinent sections of the Pennsylvania Public Utility Law, 66 Pa. Stat. Anno., §§451, et seq., 1101 et seq., are set forth verbatim in the attached Appendix. The following sections however, are of special import: (a) §1171, establishing a duty of furnishing reasonably continuous service: (b) §1341, conferring powers on the Pennsylvania Public Utility Commission over public utilities; and (c) § 1122, delegating to utilities authority to terminate service without the prior approval of the Commission. The following Public Utility Commission Tariff and Electric Regulations are also set forth verbatim: (a) Section II. Public Notice of Tariff Changes; 3 (b) Section VIII. Discount for Prompt Payment and Penalties; and (c) Rule 14D. Access to Meters. The termination of service tariff of Metropolitan Edison Company Electric Tariff, Electric Pa. P.U.C., No. 41, Rule 15, is also set out in the attached Appendix. QUESTIONS PRESENTED FOR REVIEW I. Whether the Respondent public utility acts under color of state law when it terminates a customer’s electrical service for nonpayment of a disputed bill, where such utility has the following characteristics and the following relationship to the Commonwealth of Pennsylvania: (a) It is a state sanctioned monopoly placed by the state in a position of favored economic power; (b) It performs a public function in the supplying of essential electrical services; (c) It acts in joint participation with the state, under extensive state regulation; in pursuing mutual goals, under a statutory obligation to furnish “reasonably continuous” electrical services, from which mutual benefits are derived; (d) The state has specifically authorized, approved and encouraged the Respondent’s challenged termination practices; (e) The state has delegated to the Respondent its statutory responsibility to assure that customers are not arbitrarily and unlawfully deprived of “resonably continuous” electrical services. II. Whether due process of law requires that Petitioner must be provided with adequate notice and opportunity to be heard before her essential utility services, which constitute a statutorily conferred entitlement or property right, may be terminated by Respondent for nonpayment of a disputed bill. 4 STATEMENT OF THE CASE This case was filed by Petitioner as a civil rights action, pursuant to 42 U.S.C. §1983, challenging the dis continuance of her electrical services by Respondent on October 11, 1971, in the absence of due process of law, for failure to pay a disputed bill. Petitioner, a welfare recipient,1 had been a residential utility customer of Respondent Metropolitan Edison Company since March, 1969, when she moved into her home with her two minor children. (A-22). Although Mrs. Jackson was purchasing her home, she also shared some expenses with a co-occupant, one Dodson. (A-22,32). The electric bills were placed in Mrs. Jackson’s name until September 1970, after which time they came to Petitioner’s home in Dodson’s name (A-24), who had assumed full responsibility for payment. Petitioner had been informed by Dodson that he was paying the bills and she believed this to be the case. (A-31, 32). Mrs. Jackson was not informed either by Dodson or the company that the bills were not being paid. (A-24). Although Dodson moved from the premises in August 1971, no electric bills came to Petitioner’s home through October 11, 1971, the time of the termination of the services. (A-23, 33). On Thursday, October 6, 1971, four days prior to the termination of her electric service, representatives of the Respondent company came to Petitioner’s home looking for Dodson (A-24). Mrs. Jackson was informed by one of the representatives that there was money owing and that he would return the following Monday to collect $30.00, although no mention was made of 1 See Plaintiffs In Forma Pauperis Petition and Affidavit filed with and granted by the District Court on October 18, 1971. 5 the total amount allegedly owing (A-25).2 However, on that Monday, this representative failed to come, and instead, company workmen came early in the morning to disconnect the electricity at the pole for nonpay ment of the bill. (A-25). Thus, Mrs. Jackson’s first notice of termination was when she walked out her front door and asked the utility workmen what they were doing. Id. Petitioner was not able to reach Respondent’s representatives whom she called at the company as well as at home in order to have the service reinstated. (A-25, 26). Mrs. Jackson received no written or oral notice from the company prior to the termination of her service3 (A-25, 26), informing her of the termination and reasons therefor, or of opportunities to contest the termination. Significantly, Mrs. Jackson was never even made aware of the exact amount allegedly owing. (A-25). Petitioner and her children suffered substantial harm as a result of the unexpected termination of her electrical service (A-27). Mrs. Jackson’s electricity was shut off for eight days until the district court granted a temporary restraining order on October 18, 1971. (A-13, 14). During this eight day period, Mrs. Jackson 2 Although some mention of possible “tampering” was made by the company representative, the Court specifically found no evidence of its applicability to this case (A-89, n. 3). 3 The Court of Appeals noted that the termination of Petitioner’s service did not occur until after ~ she had been “contacted” by two representatives and had been made “aware” of “irregularities” in her account. 483 F.2d at 761. However, the representatives at no time informed her that she was in imminent danger of having her electricity terminated for nonpayment of a bill, the amount of which they never informed her. 6 and her children had no lighting, no heat4 and no hot water for bathing or cooking (A-27). As a result of the lack of heat, Mrs. Jackson’s children caught colds and had to be taken to the doctor (A-27). Following the termination of Petitioner’s utility service on October 11, 1971, (A-26), and her unsuccessful attempts at reinstatement of service, Petitioner filed suit against Respondent in the United States District Court for the Middle District of Pennsylvania, seeking damages, declaratory and in junctive relief to enjoin Respondent from terminating service for nonpayment of a disputed bill in the absence of notice and opportunity for a hearing concerning the merits of the claim. On October 18, 1971, the Court issued a Temporary Restraining Order, ordering Re spondent to reinstate Petitioner’s service. On October 22, 1971, following a hearing on issuance of a preliminary injunction, the parties stipulated to an extension of the restraining order pending the District Court’s decision (A-33, 34). On November 5, 1971, Respondent filed a Motion to Dismiss (A-64), and on June 30, 1972 the lower court issued its Memorandum and Order dismissing Petitioner’s Complaint for lack of subject matter jurisdiction, in that the Court held that the Respondent utility did not act under color of law (A-65, 66). On July 13, 1972, Petitioner filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit (A-74). The Attorney General of the Common wealth of Pennsylvania was granted leave to submit a brief amicus curiae in support of the Petitioner’s position (A-5). On August 7, 1973 the District Court 4 Mrs. Jackson used her oven to partially heat her home downstairs. 7 continued the Temporary Restraining Order pending determination of Petitioner’s appeal (A-75). The case was argued before the Court of Appeals on May 4, 1973, and, on August 21, 1973, the Court handed down its Opinion and Judgment affirming the Order of the District Court (A-76, 77). Petitioner moved for a rehearing before the court en banc, and on October 25, 1973, that petition was denied without opinion (A-93). A Petition for Writ of Certiorari was filed with and was then granted by this Court on February 19, 1974 and Petitioner was granted leave to proceed in forma pauperis (A-94). SUMMARY OF ARGUMENT I. State Action: A sifting of the facts and a weighing of the circumstances, Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), leads to the conclusion that the Respondent acted under color of state law when it terminated the Petitioner’s electrical services for non payment of a disputed bill. Metropolitan Edison is a state sanctioned monopoly, permitted by the state to engage in the utility business in an exclusive geographical area, pursuant to a grant of a “certificate of public convenience” by the Common wealth of Pennsylvania. 66 Pa. Stat. Anno. §1121. As a result of the certificate, the Respondent is placed in a position of favored economic power. Consequently, since its customers have no alternative means of service, the Respondent has little incentive to refrain from arbitrarily terminating service for nonpayment of a disputed bill. Thus, state action has been found to exist when the government places monopoly power in private hands. Railway Employees Department v. Hanson, 351 U.S. 225 (1956); Lathrop v. Donohue, 367 U.S. 820 (1961). 8 The supplying of electrical services is traditionally a public function. Munri v. Illinois, 94 U.S. 113 (1877). Such electrical services unquestionably constitute a “necessity of life”, Jones v. City o f Portland, 245 U.S. 217 (1917); Palmer v. Columbia Gas o f Ohio, 479 F.2d 153 (C.A. 6, 1973), as can be seen in the recent newspaper reports of the deaths of elderly persons resulting from the termination of such services. See The New York Times, Dec. 26, 1973. The Public Utility Law establishes a duty upon utilities to provide “reasonably continuous” service in the public interest. 66 Pa. Stat. Anno. §1171. Quite often, the provision of such service is undertaken by governmental bodies directly. A finding of state action has thus often resulted from the performance of a public function by a “private” entity. Marsh v. Alabama, 326 U.S. 501 (1946); Evans v. Newton, 382 U.S, 296 (1966). The furnishing of utility services is similarly a public function justifying a finding of state action. Ihrke v. Northern States Power Company, 459 F.2d 566, 569 (C.A. 8, 1972), cert, granted, vacated as moot, 34 L.Ed.2d 72 (1972). In addition, the quasi-judicial function of determining the lawfulness of the deprivation of property under state authority, is another governmental function performed by Respondent, further justifying a finding of action under color of law herein. Metropolitan Edison further acts in joint partici pation with the state, under extensive state regulation, in pursuing mutual goals, under a statutory obligation to furnish “reasonably continuous” service, from which mutual benefits are derived. In this regard, the Commonwealth of Pennsylvania is significantly involved in all areas of the Respondent’s operations, similar to 9 the relationship in Burton v. Wilmington Parking Authority1 supra. Hence, the Pennsylvania Public Utility Commission regulates the setting of utility rates and the furnishing of services; requires all utilities to file tariffs with the Commission and obtain approval thereon; and has general administrative powers and authority, similar to those of a principal to an agent, including the veto power over utility contract provisions. 66 Pa. Stat. Anno. §§1141, 1142, 1171, 1341, 1360. In pursuing their mutual goals of furnishing “rea sonably continuous” electrical services, both the Respondent and the state derive mutual benefits therefrom. The Respondent receives monopoly status, a guaranteed fair rate of return, and rights of eminent domain and entry on private property. 66 Pa. Stat. Anno. §§1121, 1124, 1141, P.U.C. Elec. Reg., Rule 14D. It is additionally granted power to promulgate its own regulations which have the effect of law. 66 Pa. Stat. Anno. §1171; Cray v. Pa. Grayhound Lines, 111 Pa. Super 275, 110 A.2d 892 (1955). In return, the Commonwealth of Pennsylvania is assured that its citizens receive necessary utility services at a reasonable cost. The state additionally benefits from summary terminations which reduce utility costs and hence rates. At the same time, the state benefits from threatened terminations, since disputed bills are then quickly paid, thereby increasing utility revenues in which the state shares. See Ihrke v. Northern States Power Company, 459 F.2d at 568. Finally, the Commonwealth of Pennsylvania directly benefits from the receipt of a fixed portion of the Respondent’s revenues, through collection of the Utilities Gross Receipts Tax, 72 Pa. Stat. Anno. §8101. In addition to the above, the Commonwealth of Pennsylvania has specifically authorized and approved 10 Metropolitan Edison’s termination practices. Pursuant to statutory and regulatory authority, 66 Pa. Stat. Anno. §§1122, 1171, P.U.C. Tariff Reg. Section VIII, the Respondent’s constitutionally deficient termination tariff was filed with and was approved by the Commission, by becoming automatically effective sixty days after filing. 66 Pa. Stat. Anno. §1148, P.U.C. Tariff Reg., Section II. The Commission’s approval, in conjunction with its silence of Metropolitan Prison’s termination tariff, thus warrants a finding of state action similar to that in Public Utilities Commission v. Poliak, 343 U.S. 451 (1952); Palmer v. Columbia Gas o f Ohio, 479 F.2d 153 (C.A. 6, 1973); Washington Gas Light Co. v. Virginia Electric and Power Co., 438 F.2d 248 (C.A. 4, 1971). Furthermore, the Commonwealth of Pennsylvania has specifically “encouraged” Metropolitan Edison’s ter mination practices. See Reitman v. Mulkey, 387 U.S. 369 (1967); McCabe v. Atchison Topeka and Santa Fe R. Co., 235 U.S. 151 (1914). In this case, the Pennsylvania Public Utility Law exempts utilities from the usual requirement of obtaining prior Commission approval for termination of services for nonpayment of a bill. 66 Pa. Stat. Anno. § 1122. In addition, the Commission authorizes utilities to promulgate their own termination tariffs, and grants them the right of entry onto customers’ premises, which does facilitate the termination procedure. Certainly, because the Respon dent has been granted monopoly power, it has little incentive to refrain from arbitrary termination practices. Finally, the state has delegated to Metropolitan Edison its statutory obligation to assure the provision of “reasonably continuous” services, and has further delegated its responsibility to the public to determine whether termination of service for alleged nonpayment 11 of bills is in compliance with existing laws and constitutional requirements. This “abdication” of duty, through delegation of authority constitutes state action. Burton v. Wilmington Parking Authority, 365 U.S. at 715; See Fuentes v. Shevin, 407 U.S. 67 (1972) at 93. II. Due Process of Law: Due process of law is necessary to prevent arbitrary and erroneous deprivations of a statutorily conferred entitlement, which, in this case, consists of the Petitioner’s statutory right to “reasonably continuous” utility service. Once an entitlement is conferred by the government it cannot be taken away in the absence of due process of law, Fuentes v. Shevin, 407 U.S. 67 (1972); Bell v. Burson, 402 U.S. 535 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970), especially when such entitlement constitutes a necessity of life. Palmer v. Columbia Gas o f Ohio, supra. In view of the numerous instances of utility company errors, employee indifference or hostility, arbitrary utility company termination practices, the availability of legitimate customer defenses and the lack of adequate administrative and legal remedies available to low income consumers, it is readily apparent that the protections of adequate prior notice and opportunity to be heard must be provided to a customer before being deprived of essential utility services. It is submitted that “the stakes are simply too high” to permit unfettered termination practices. Goldberg v. Kelly, 397 U.S. at 266. Since the receipt of continued utility service is a protected property interest, Board o f Regents v. Roth, 408 U.S. 564 (1972), due process of law in utility termination situations requires adequate prior notice of the nature of the dispute, means of resolution of the dispute and of the right to an oral evidentiary hearing, 12 prior to the termination of utility services. Palmer v. Columbia Gas o f Ohio, 479 F.2d at 166; Bronson v. Consolidated Edison o f New York, 350 F.Supp. 443, 450 (S.D.N.Y., 1972). The customer may be afforded the opportunity for a conference with a company representative and an informal agency hearing, prior to the opportunity for a formal oral hearing. The remedy of “pay first and litigate later” , sanctioned by the Court of Appeals (A-91), is in actuality a “non-alternative”, Bronson, supra at 449, and is contrary to the teaching of this Court that a wrong will not be permitted to be done merely because it might be undone. Stanley v. Illinois, 405 U.S. 645, 647 (1972). ARGUMENT I . RESPONDENT ACTS UNDER COLOR OF STATE LAW WHEN IT TERMINATES PETITIONER’S ELECTRICAL SERVICES FOR NONPAYMENT OF A DISPUTED BILL. A finding of action under color of state law requires a comprehensive analysis of the cumulative effects of the various state action indices that are involved in the facts of each particular case. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961). See also Moose Lodge 107 v. Irvis, 407 U.S. 163 (1972). Petitioner submits that a sifting and weighing of the facts and circumstances in this case can lead only to the 13 conclusion that the Respondent did act under color of law when it terminated Petitioner’s electrical services. A. Respondent is a state sanctioned monopoly which performs a public function and which acts in joint participation with the state under extensive state regulation. 1. Respondent is a state sanctioned monopoly, placed by the state in a position o f favored economic power. In Pennsylvania, public utility companies may not engage in business unless a “certificate of public convenience” is conferred upon them by the Pa. Public Utility Commission. 66 Pa. Stat. Anno. §§1121, 1122. Such a certificate may be granted only following a determination by the Commission that the granting of same is necessary or proper for the service, accom modation, convenience or safety of the public. Id, §1123. The certificate of convenience sets forth the description of the service and the exclusive territorial limitations of such service. Id, §1121. The granting of a certificate of convenience or exclusive franchise represents a fundamental re structuring of a private anti-competitive market to one under governmental control.5 * It is apparent that such state authorized monopoly status results in the 5 As commerce developed in medieval England, artificial monopolies tended to disappear, leaving only the “natural monopolies”, which by their nature, would not admit of free competition, such as water, gas, telephone and electric companies.” Burdick, “The Origin of the Peculiar Duties of Public Service Companies” , 11 Columbia L.R. 514 (1911). Because people were “compelled” to resort to these natural monopolies, to obtain a “necessity” such as fuel, “which could otherwise be obtained with great difficulty and at times perhaps not at all” , Jones v. City o f enjoyment by the utility of a favored economic position.6 As a result of the lack of competition, the utility customer is afforded little bargaining power,7 and consequently the utility has little incentive to refrain from terminating service for nonpayment of a disputed bill.8 Thus, the utility company may elect to terminate a customer’s services knowing that the “power, property and prestige” of the state is behind 14 Portland, 245 U.S. 217, 224 (1917), the states found it necessary to control the potential evil of “odius” common law monopolies, Shepard v. Milwaukee Gas Light Co., 6 Wis. 526, 534 (1858), in the “public interest” , Munn v. Illinois, 94 U.S. 113 (1877fNebbia v. New York, 291 U.S. 502 (1934), Wyman, “The Law of Public Callings as a Solution to the Trust Problem”, 17 Harvard L.Rev. 156 (1904); Arterburn, “The Origin and First Test of Public Callings,” 75 U. Pa. L.Rev. 411 (1927). 6 It is interesting to note that the successful attempts of public utilities to exclude themselves from the anti-trust laws have not been on the grounds that they are not monopolies, but rather on the basis that their monopoly activity constitutes “state action”. See Gas Light Co. o f Columbus v. Georgia Power Vo., 440 F.2d 1135 (CA. 5, 1971) cert, deri., 405 U.S. 969 (1972) (state action due to “intimate involvement” of state in defendant’s rate making process), and Washington Gas Light Co. v. Virginia Electric and Power Co., 438 F.2d 248 (C.A. 4 ,T97TJ(sfaFe silence constituting “approval” of utility’s activities). 7The dangers of unfettered termination are great, for as this court recently observed “ [if a creditor] knows that he is dealing with uneducated, uninformed consumers with little access to legal help and familiarity with legal procedures, there may be a substantial possibility that a summary seizure of property - however unwarranted - may go unchallenged and the [creditor] may feel that he may act with impunity.” Fuentes v. Shevin, 407 U.S. 67(1972), at 83, n. 13. 8 Wood v. City o f Auburn, 87 Me. 287, 32A. 906 (1895). 15 such action. Burton v. Wilmington Parking Authority, 365 U.S. at 725. It is not surprising therefore that state action has been found to exist in situations where the government places monopoly power in the private hands. Lathrop v. Donohue, 367 U.S. 820 (1961); Railway Employees Department v. Hanson, 351 U.S. 225 (1956); Lavoi v. Bigwood, 457 F.2d 7 (C.A. 1, 1972). 2. Respondent performs an important public func tion in supplying essential electrical services. The supplying of electrical services, often undertaken directly by governmental bodies, is a public function, particularly in view of the fact that the provision of utility service has always been regarded as a “public calling.”9 Thus, as stated by one in its analysis of this issue: “ It is, of course, fundamental that justification for the grant by a state to a private corporation of a 9See Note: “Constitutional Safeguards for Public Utility Customers” , 48 NYU L.Rev. 493 (1973); Wyman, Public Service Corporations (1911). Thus, when private property is “affected with a public interest, it ceases to be juris privati only” and becomes clothed with a public interest when it is used in a manner to make it of “public consequence to the communitv at large.” M um v. Illinois, 94 U.S. at 126, quoting from Hale, De Portibus Maris, 1 Harg. Law Tracts 78. (emphasis original). However, when such functions are performed by private parties they become subject to governmental regulation. Barnes, “Govern mental Regulation of Public Service Corporations,” 3 Marquette L. Rev. 65 (1918). Furthermore, it is immaterial that the business was established prior to imposition of the state regulatory control. Munn v. Illinois, 94 U.S. at 133. The important issue is the “type” of service being provided, rather than whether a public or private entity actually furnishes the service. Jones v. City o f Portland, 245 U.S. at 233. See also Moody’s Public Utility Manual, §38(1972). 16 right or franchise to perform such a public utility service, as furnishing transportation, gas, electricity or the like, on the public streets of the city, is that the grantee is about the public’s business. It is doing something the state deems useful for the public necessity or convenience.” Boman v. Birmingham Transit Co., 280 F.2d 531, 535 (C.A. 5, I960).10 There can be little doubt that in furnishing utility services, public utilities provide a “necessary service” that is beneficial to the public. Note, supra, 48 N.Y.U.L.Rev. at 507. Thus, in Jones v. City o f Portland, 245 U.S. 217, (1917) at 223-225, this Court recognized that fuel constituted an “indispensible necessity of life” whose absence would endanger the community as a whole, because “heat is as indis pensible to the health and comfort of the people as is light or water.” Also see Moose Lodge 107 v. Irvis, 407 U.S. at 173 in this regard. Most courts that have addressed themselves to the issue have found continued utility services to constitute a necessity of life. Thus, in Bronson v. Consolidated Edison Co. o f New York, 350 F.Supp. 443 (S.D.N.Y., 1972) at 447 the court found “beyond doubt” that electric service can become “vital to the existence” , 10Courts have specifically noted that furnishing of utility service was a public function and therefore constituted an important index of state action. See Bronson v. Consolidated Edison o f New York, 350 F.Supp. 443 (S.D.N.Y., 1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D., Kan., 1972); Davis v. Weir, 328 F.Supp. 317, 359 F.Supp. 1023 (N.D., Ga., 1971, 1973); Palmer v. Columbia Gas o f Ohio, Inc., 479 F.2d 153 (C.A. 6, 1973); Ihrke v. Northern States Power Co., 459 F.2d 566 (C.A. 8, 1972) cert, granted, vacated as moot, 34 L.Ed. 2d 72 (1972). 17 while the court in Stanford v. Gas Service Co., 346 F.Supp. 717 (D., Kan., 1972) at 720 noted that “unheated shelter affects life itself.” 11 Similarly, the district court in Palmer v. Columbia Gas o f Ohio, 342 F.Supp. 241 (N.D., Ohio, W.D., 1972) at 247, stated that the lack of heat in the winter time has “very serious effects upon the physical health of human beings, and can easily be fatal.” In like manner the court in Davis v. Weir, 328 F.Supp. 317, 359 F.Supp. 1023 (N.D., Ga., 1971, 1973) at 322, found that a tenant would “suffer a serious loss” without the benefit of water services which constituted a necessity. See also Palmer v. Columbia Gas o f Ohio, 479 F.2d 153 (C.A. 6, 1973) at 168, and Wood v. City o f Auburn, 87 Me. at 292.11 12 The common law duty to furnish adequate utility service at a fair price was incorporated into state public utility laws.13 Thus, the Pennsylvania Public Utility 11 In this regard, in noting electrical service to be a necessity of life, one has to look no further than the evening newspaper for shocking articles reporting the deaths of families and of elderly persons whose utility services had been terminated during the Winter of 1973. See “Tragedies: A Winter’s Tale”, Newsweek, p. 28 (Jan. 8, 1974), and “Man, Seventy-one Freezes to Death After Utility Shuts Off Gas”, United Press Interna tional, appearing in Boston Globe, p. 17 (Feb. 9, 1974). 12The above characterizations of utility service as a necessity of life are . in sharp contrast to the casual observation of the Third Circuit that the absence of such service does not pose a “threat” to the life of the occupants, and that such service constitutes a convenience, rather than a necessity in urban life. (A-88). 13At common law, “a person by holding himself out to serve the public, generally assumed two obligations - to serve all who applied; and if he entered upon the performance of the service, to do it in a workmanlike manner.” Burdick, supra, note 5 at 18 Law, 66 Pa. Stat. Anno. § 1101, et seq., imposes a duty on all public utilities to provide “reasonably con tinuous” service at a fair price to all customers.14 Id, §§1141, 1171. Such an obligation is inherent in every certificate of public convenience, and hence, a public service corporation may not operate only “when the weather is pleasant” or when there is a “chance for profit.” Columbo v. Pa. P.U.C., 159 Pa. Super. 483, 48 A.2d 59 (1946). Similarly, the Commonwealth of Pennsylvania, through its Public Utility Commission, has a statutory duty to assure that public utilities furnish “reasonably continuous” service, 66 Pa. Stat. Anno. §§452, 1171, 1341.15 It is precisely because a public utility acts in the public interest in supplying essential utility services 158. Also see Wyman, supra, note 5 at 166, where it is stated that “the situation demands this law, that all who apply shall be served, with adequate facilities for reasonable compensation and without discrimination; otherwise in crucial instances of oppression, inconvenience, extortion and injustice there will be no remedies for those industrial wrongs.” 14The statutory obligation to supply service to all applicants is one of the main factors to be considered in distinguishing this case from that of Columbia Broadcasting System v. Democratic National Committee, 36 L.Ed.2d 772 (1973). In the CBS case at least three members of this Court failed to find governmental action in the refusal of a broadcaster to accept a paid editorial advertisement, primarily because of the Congressional intent expressed in the Federal Communications Act that broadcast licensees were not to be treated as common carriers and were not obligated to accept whatever is tendered by members of the public. 15Such an obligation consists of the “primary duty” to protect the interests of utility customers, as the “primary object” of the public service laws is at all times to serve the public. Ridley Township v. Pa. P.U.C., 172 Pa. Super. 472, 94 A.2d 168 (1953). 19 under the authority of the Public Utility Law, that it cannot be permitted to terminate such services without due process protections to the customer. Hence, the failure of certain courts to find state action primarily because the utility was deemed by them to be “motivated by purely private economic interests” and pursuant to its “own regulations” in terminating customers’ services,16 is based upon the erroneous premise that a public utility is legally permitted to act solely pursuant to its own private interests, as compared to also being required to act in the public interest. See Sprecher J., dissenting in Lucas v. Wisconsin Electric Power Co., 466 F.2d 63S (C.A. 7, 1972) cert. den. 34 L.Ed.2d 696 (1973). Since this Court has numerous times held that a private organization exercising significant control over the operation, management or supply of a governmental or public service acts under color of law,17 a finding of * 11 Kadlec v. Illinois Bell Telephone Co., 407 F.2d 624 (C.A. 7, 1969), cert. den. 396 U.S. 846 (1969); (however, see Kerner J. Concurring); Taglianetti v. New England Tel. and Tel Co., 81 R L 351, 103 A.2d 67 (1954); Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (C.A. 7, 1972) cert. den. 34 L.Ed.2d 696 (1973) (however, see Sprecher, J. dissenting); Particular Cleaners v. Commonwealth Edison Co., 457 F.2d 189 (C.A. 7, 1972) cert, den. 34 L.Ed.2d 148 (1972); Also see Martin v. Pacific Northwest Bell Tel. Co., 441 F.2d 116 (C.A. 9, 1971). 11Nixon v. Condon, 286 U.S. 73 (1932); Terry v. Adams, 345 U.S. 461 (1953) (running of elections); Marsh v. Alabama, 326 U.S. 501 (1946) (operating a company town); Evans v. Newton, 382 U.S. 296 (1966) (maintaining a municipal park); Cooper v. Aaron, 358 U.S. 1 (1958) (providing free education); and Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) (shopping center); Smith v. Allwright, 321 U.S. 649 (1944). Also see Hampton v. City o f Jacksonville, 304 F.2d 320 (C.A. 5, 1962); Farmer v. Moses, 232 F.Supp. 154 (S.D.N.Y., 1964) (state fair); Baldwin v. Morgan, 287 F.2d 750 (C.A. 5, 1961); McQueen v. Drucker, 438 F.2d 781 (C.A. 1, 1971) (public housing); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (C.A. 6, 1968) (hospital); and Smith v. Holiday Inns o f America, 336 F.2d 630 (C.A. 6, 1964) (hotel). 20 state action is similarly compelled in the instant case, where the Respondent is under a statutory obligation to furnish a service which is necessary to life.18 In performing this and other public functions,19 Metro politan Edison thus acts under color of state law. 18The performance of a public function in supplying necessary utility services was found to be an important index for a finding of state action in Bronson v. Consolidated Edison o f New York, supra; Stanford v. Gas Service Co., supra; Davis v. Weir, supra; Palmer v. Columbia Gas o f Ohio, supra; and Ihrke v. Northern States Power Co., supra. 19 In addition to the performance of a public function in sup plying utility service, the Respondent has also been authorized by the state to perform a governmental function in the adjudication of when private property is to be seized; and then itself is permitted to carry out that seizure and state sanctioned deprivation of property. Thus, courts have often held that statutorily authorized actions by a private person, resulting in the seizure or deprivation of property interests, which action possesses the characteristics of an act by the State, constitutes state action. Such action may take the form of entry onto private property, as the summary seizure of tenants’ property by landlord: Hall v. Garson, 430 F.2d 430 (C.A. 5, 1970); Dielen v. Levine, 344 F.Supp. 823 (D., Neb., 1972); Gross v. Fox, 349 F.Supp. 1164 (E.D., Pa., 1972); or summary seizure of property by an innkeeper: Klim v. Jones, 315 F.Supp. 109 (N.D., Cal., 1970); or detention of an automobile by a garageman: Hernandez v. European Auto Collision, Inc., 487 F.2d 378 (C.A. 2, 1973); Mason v. Garris, 360 F.Supp. 420 (N.D., Ga., 1973), or service of court process by private persons: United States v. Wiseman, 445 F.2d 792 (C.A. 2, 1971); or the arrest of persons by a bail bondsman: Hill v. Toll, 320 F.Supp. 185 (E.D., Pa., 1970). Hence, it is the delegation by the state to a private party of the decision making process to carry out the seizure of the property of another, following a contractual dispute, that has resulted in a finding of action under color of law. Fuentes v. Shevin, 407 U.S. 67 (1972). Thus, when a private party is 21 3. Respondent acts in joint participation with the state, under extensive state regulation, in pursuing mutual goals under a statutory obligation to furnish “reasonably continu ous’’ electrical services, from which mutual benefits are derived. Since both the Respondent and the Commonwealth of Pennsylvania have the mutual goals and mutual obligations of furnishing “reasonably continuous” utility services at a fair price to the utility customers, 66 Pa. Stat. Anno. §§1141, 1171, it is submitted that the Commonwealth of Pennsylvania is no less involved in Metropolitan Edison’s activities than was the State of Delaware, when it was held to be a joint participant for state action purposes in the restaurant business in Burton v. Wilmington Parking Authority, 365 U.S. at 724.20 In pursuing their mutual goals, it is also apparent that the Commonwealth of Pennsylvania is “signifi cantly involved” in every aspect of Metropolitan Edison’s operations and activities. The Commonwealth of Pennsylvania, through its Public Utility Commission, enabled by tire state to deprive others of due process of law, a finding of state action is compelled, since the state has provided that method for resolution of such disputes. Boddie v. Connecticut, 401 U.S. 371 (1971). 20In determining whether state action existed based in part upon joint participation in a particular activity, this Court has noted that the actor need not be an “officer” of the state, since it is enough if he is a “willful participant” with the state. United States v. Price, 383 U.S. 787 (1966) at 794. Furthermore, the involvement of the state need not be “either exclusive or direct” , since state action can be found even though the participation of the state is “peripheral” or its action is only one of “several cooperative forces” resulting in the constitutional violations. United States v. Guest, 383 U.S. 745 (1966). 22 extensively regulates and controls Metropolitan Edison by first granting it a “certificate of public convenience” in order for it to operate. 66 Pa. Stat. Anno. §§1121-1123. The Commission further controls the setting of rates by all utilities. Id, §1141. Every public utility must file its tariffs with the Commission. Id, §1142. Furthermore, no public utility may subject any customer to any “unreasonable prejudice or dis advantage” as to rates, Id, §1144. Of major importance is the fact that the Commission has complete power over the character of utility facilities and the furnishing of service by the utilities. Id, §1171. In addition, no public utility may subject any customer to any unreasonable prejudice or disadvantage in the furnishing of service. Id, §1172, and the Commission may further require reasonable standards for service. Id, §1182, upon its own motion or upon any complaint of “unreasonable, unsafe, inadequate, insufficient or un reasonably discriminatory” service. 66 Pa. Stat. Anno. § 1183.21 The Commission has general administrative power and authority to “supervise and regulate” all public utilities doing business within the Commonwealth. 66 21 In addition to its regulatory control over rates and services, the Commission has extensive regulatory and supervisory powers over utility operations, accounting and budgetary matters, 66 Pa. Stat. Anno. §1211, and, at all times has access to and may inspect and examine all utility accounts, books, maps, inven tories, appraisals, valuations or other reports, documents and memoranda, and may require the filing of suchmaterial with the Commission. Id, §1217. The Commission also has supervision over utility securities and obligations. Id, §1241, and additional ly has power to control a utility’s relations with affiliated interests. Id, §§1271, 1276. 23 Pa. Stat. Anno. § 1342.22 In fact, the Commission’s relationship with and control over utility companies is strikingly similar to that of a principal and agent relationship.23 It is apparent from the above that Metropolitan Edison is not a typical private business entity, since, in addition to state licensing, every significant aspect of its operation is subject to comprehensive statutory and administrative regulation. This comprehensive regulatory scheme demonstrates the complete involvement of the state in and its joint participation with the Respondent 22ln this regard, it is interesting to note that the Court’s finding of state action in Stanford v. Gas Service Co., 346 F.Supp. at 721, was based primarily on the fact the utility was subject to extensive regulatory control, based on a Kansas statute, pursuant to which the utility terminated its customer’s service. That statute was very similar to Section 1341 above, and provided: Power, Authority and Jurisdiction. The state corporation commission is given full power, authority and jurisdiction to supervise and control the public utilities. . . and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.” K.S.A. §66-101. 23The Commission is further vested with the power to enforce all of the provisions of the Act, including the “full intent thereof’, and to “rescind” or “modify” any regulations or orders. 66 Pa. Stat. Anno. §1342. The filing of reports may be required of utilities. Id, §1345, and they are likewise required to observe and obey all regulations and orders of the Commission. Id, §1347. Further, the Commission is empowered to “vary, reform or revise” the terms of any contract entered into by utilities which concerns the “public interest and the general well being” of the Commonwealth. Id, §1360. Finally, the Commission is empowered to hear, investigate and resolve all complaints on behalf of or against any public utility in violation of any law which the Commission has jurisdiction to administer. Id, §§1391, 1395, 1398. 24 in the supplying of electrical services.24 The Penn sylvania regulatory scheme thus goes far beyond the simple notice filing requirement which was found insufficient for state action purposes in Kadlec v. Illinois Bell Telephone Company, 407 F.2d 624 (C.A. 7, 1969) cert. den. 396 U.S. 846 (1969).25 In addition to the partnership role of the Respondent and the state in the furnishing of essential electrical services, mutual benefits are conferred upon these joint venturers through the provision of such services. Similarly, the finding of state action through joint participation in Burton v. Wilmington Parking Author ity, supra, was based in part upon the fact that benefits were mutually conferred upon the state and the private entity in furnishing of the challenged service. Metropolitan Edison receives distinct benefits from this arrangement since it is granted a certificate of convenience or franchise, and monopoly from the state. 66 Pa. Stat. Anno. §1121, in an exclusive territory of service. Id, §1121, with a guaranteed fair rate of return, Id, §§1141, 1171; City o f Pittsburgh v. Pa. P.U.C., 182 Pa. Super. 551, 128 A.2d 372 (1957), and is further vested with the right of eminent domain, Id, 24While the concept of “pervasive state regulation” was not deemed to itself constitute the major indicia of state action by this Court in Public Utilities Commission v. Poliak, 343 U.S. 451 (1952) and in Moose Lodge 107 v. Irvis, 407 U.S. 163 (1972), yet its significance apparently cannot be underestimated in light of this Court’s statement in Columbia Broadcasting System v. Democratic National Committee, 36 L.Ed.2d 772 (1973) at 793 that Congress did not establish a regulatory scheme for broadcast licensees “as pervasive as the regulation of public transportation in Poliak. ” 25If the utility company is to be given extensive powers in conjunction with its public responsibilities, it must be remem 25 § 1124, and the right of entry onto customers’ private property for the purpose of maintenance and operation of its equipment, Pa. P.U.C. Electric Regulation, Rule I4D. Finally, the Respondent is authorized by statute to promulgate its own regulations whlcirhave the effect ofTaw ,̂ Cray v. Pa. "Greyhound Lines, i 77 Pa. Super. 275, 110 A.2d 892 (1955), and which are subject only to the restraints of state laws. Id. §1171. Likewise, certain substantial benefits are conferred upon the Commonwealth of Pennsylvania, through the furnishing of utility service by the Respondent. The state is assured that its citizens will receive reasonably continuous and necessary utility services at reasonable prices through provision of such services by public utility companies. Furthermore, the state has an interest in seeing to it that its citizens receive such services at the lowest possible rate, while still yielding a fair rate of return to the utility. Furthermore, the control of rates to the public is another major benefit derived by the state from utility regulation. Since relatively unfettered terminations reduce the utility’s operating costs, and since this reduction would be reflected in lower rates, the termination of services serves to further the state’s regulatory interests.26 The state thereby bered that “Along with power, goes responsibility,” and thus, when the actor’s authority is derived in part from the “Government’s thumb on the scales” , the exercise of such authority and power becomes “closely akin to its exercise by the Government itself.” American Communications Ass’n v Douds 339 U.S. 382 (1950). 26 See, Note: “Fourteenth Amendment Due Process in Terminations of Utility Services for Nonpayment,” 86 Harvard L.Rev. 1477 (1973). 26 ironically receives a direct pecuniary benefit from the specific act complained of. In addition, since the utility is a monopoly, its threat of termination for nonpayment of a bill has a tremendously coercive impact and often results in immediate payment of many disputed bills. Since the threatened terminations can result in an increase of revenue, and since the state receives a share of the utility’s gross revenues, pursuant to 72 Pa. Stat. Anno. §8101, such threatened terminations result in a direct benefit to the state.27 Finally, it is apparent that the Commonwealth of Pennsylvania has a direct financial interest in the revenue of the Respondent. Although the Respondent corporation pays corporate net income tax and capital or franchise tax and property taxes, as do other Pennsylvania corporations, it also pays an additional and unique tax, i.e., the Utilities Gross Receipts Tax, 72 Pa. Stat. Anno. §8101, et seq. Every public utility, including Respondent, must pay to the Commonwealth of Pennsylvania, a tax of forty-five mills upon each dollar of its gross receipts from the sale of its utility services, including electricity. 72 Pa. Stat. Anno. §8101. It is submitted that the Utilities Gross Receipts Tax is no different than the five percent of gross profits paid to the City of St. Paul by the Northern States Power company in Ihrke v. Northern States Power Co., supra. As in Ihrke, such an “arrangement” makes the state a “direct beneficiary” of the utility’s business, especially since the state had the power to set the 27This rationale was specifically adopted by the Eighth Circuit as a basis for its finding of state action in Ihrke v. Northern States Power Co., supra, 459 F.2d at 568. 27 utility’s rates and to regulate its operations. Ihrke, supra, 459 F.2d at 57Q.28 Therefore, whether or not the Respondent intended to be a “partner” in furnishing utility services with the Commonwealth, is immaterial. It is sufficient for state action purposes that the two entities operate in a “symbiotic relationship” , Moose Lodge 107 v. Irvis, 407 U.S. at 166, in the provision of such services.29 B. The Commonwealth of Pennsylvania is directly involved in the Respondent’s termination activities in that it has specifi cally authorized, encouraged and approved such activities, and it has delegated its statutory obligation to the Respondent to determine the lawfulness of its own chal lenged termination practices. 1. The Commonwealth o f Pennsylvania has specifically authorized and approved the Respondent’s termination action. A finding of state action is compelled when the state regulatory agency specifically approves the utility’s 28See also Hattell v. Public Service Co. o f Colorado, 350 F.Supp. 240 (D., Colo., 1972); Buffington v. Gas Service Co., -F.Supp.- (W.D., Mo., W.D. 1973); Salisbury v. New England Tel. and Tel. Col, 2 Poverty Law Rep. §18546 (D., Conn., 1973) where the states derived specific monetary benefits from the utility’s activities. 29States have been found to be joint participants for state action purposes in other utility termination cases. See Buffington v. Gas Service Co. - F.Supp. - (W.D., Mo., W.D., 1973) (City of Kansas shared “directly and proportionately” in the gross revenue of the defendant utility); Bronson v. Consolidated Edison o f New York, 350 F.Supp. at 446 (the “utility is licensed to and does act as an agent of the state”); Palmer v. Columbia Gas o f Ohio, 479 F.2d at 165 (“the regulatory activities of the state have insinuated it into a position of interdependence with the company so that it must be recognized as a joint participant with the company”). Also see Ihrke v. Northern States Power Co., 459 F.2d at 569. 28 challenged conduct. Public Utilities Commission v. Poliak, 343 U.S. 451 (1952). The Court of Appeals held that Metropolitan Edison’s termination procedure is merely the product of interna! corporate action without acquiescence of or authorization by the Commonwealth of Pennsylvania.30 However, Tariff Reg. No. VIII, is not the only state regulation to be considered here, for the Court has overlooked specific statutory authorization for the challenged practice. The Public Utility Code, 66 Pa. Stat. Anno. § 1 171 states inter alia: “Subject to the provisions of this act and the regulations or orders of the [Public Utility] Commission, every public utility may have reason able rules and regulations governing the conditions under which it shall be required to render service . . .” (emphasis added). Together with filing requirements of Tariff Reg. No. VIII, this statute subjects utility regulations governing conditions of service and termination to the regulatory authority of the Public Utility Commission. It requires the utility to adopt regulations acceptable to and to be approved by the Commission. It mandates a statutory standard of reasonableness. It subjects the corporation’s regulations to the enforcement and compliance author ity of the Commission. 66 Pa. Stat. Anno. §§1341, 1342, 1343, 1347. Pursuant to Section 1171, Metropolitan Edison has promulgated Electric Tariff No. 41 which provides 30The only state involvement found by the court was Public Utility Commission regulation, Tariff Reg. No. VIII, which requires utility corporations to set forth the conditions of service termination for non-payment of accounts. This requirement, the court ruled, is not sufficient state involvement to satisfy the state action requirement. 483 F,2d at 758 (A-85). 29 unchecked authority to terminate utility service for alleged nonpayment of a bill. This tariff has been formally presented to the Public Utility Commission under its requirements governing submission of pro posed tariffs. Tariff Reg. No. II. It has been accepted and approved by the Commission under its general regulatory authority. 66 Pa. Stat. Anno. §§1341, 1348. In the absence of Commission disapproval, the Public Utility Law provides that tariffs filed with the Commission will automatically become effective, upon notice, sixty days after filing. 66 Pa. Stat. Anno. §1348; Pa. P.U.C. Tariff Regulations, Section II, “Public Notice of Tariff Changes”. In the instant case, Metropolitan Edison filed its termination tariff on April 73'0~'TWl, and it became effective on June 30, 1971. Metropolitan Edison Company Electric Tariff, Electric Pa. P.U.C. No. 4 L. Rule 1577“ It is evident that Seclion 1171 directly and significantly involves the Commonwealth with the challenged practices. The statutory provision goes far beyond the simple notice-filing requirement of Tariff Reg. No. VIII, cited by the Circuit Court. The Public Utility Commission is to define the standard of reasonableness; it is to review proposed regulations; it is to accept or reject those regulations. And having required, reviewed, accepted, and approved the chal lenged tariff, the Commission has vested Tariff No. 41 with the apparent authority of the Commonwealth and clothed the termination practice with the legitimacy of law. In short, the state has directly approved Metropolitan Edison’s exercise of the tariff provisions. Public Utilities Commission v. Poliak, 343 U.S. at 462. Moreover, Tariff No. 41 carries the force and effect of law. Cray v. Pa. Grayhound Lines, 111 Pa. Super. 275, 110 A.2d 892 (1955). Having been submitted, 30 received and approved by the Commission, the tariff is clothed with an authority which could not otherwise be enforced.31 Therefore, Metropolitan Edison’s tariff is no less an index of specific authorization than was the termination statute in Palmer v. Columbia Gas o f Ohio, 479 F.2d at 162. The fact that the Commission may not have held formal hearings to approve or ratify the Respondent’s tariff is not material in view of the fact that such tariff was submitted as required by law and was not disapproved,32 even though the Commission had the power to do so.33 If Respondent’s tariff did not carry 3ISignificantly, although there was no statutory or regulatory authorization in Ihrke v. Northern States Power Co., 459 F.2d at 570, the court found specific municipal authorization for such activity by the fact that the city had a right to “review and revise” all of the company’s proposed regulations. 32The Commission’s silence on the matter constitutes its consent. Hence, in Washington Gas Light Co. v. Virginia Electric and Power Co., the court stated that: “The argument [lack of investigation or formal approval] is not without merit, but the conclusion is not inevitable unless one equates administrative silence with abandonment of administrative duty. It is just as sensible to infer that silence means consent, i.e., approval. Indeed the latter inference seems the more likely one when we remember that even the gas company concedes that the S.C.C. possessed adequate regulatory power to stop V.E.P.C.O. if it chose to do so . . 438 F.2d at 252. 33 Since the Commission had the “right to control” the Respondent’s challenged activity, its failure to exercise such power is immaterial for a finding of state action. Pendrell v. Chatham College, 42 L.W. 2429 (W.D., Pa., 1974). Such reservation of the power to control operations was specifically noted by the court in Palmer, supra, 479 F.2d at 164, as an important index of state action. Significantly, although no statutory or regulatory authorization for termination existed in Ihrke v. Northern States Power Co., supra, 459 F.2d at 570, the court found specific municipal authorization of such activity in 31 the approval and authority of the Commission, it would have no force and effect and could not serve as justificiation for Metropolitan Edison’s termination practices.34 2. The Commonwealth o f Pennsylvania has specifi cally encouraged the Respondent’s termination practices. In Reitman v. Mulkey, 387 U.S. 369, 386 (1967), this Court concluded that prohibited state involvement could be found even where the state can be charged with only “encouraging”, rather than “commanding” discrimination. Thus, where the offending party can legitimately rely on a state statute which authorizes or permits the challenged conduct, whether or not such conduct could,have been engaged in prior to enactment of the statute, a finding of action under color of law is justified. See Railway Employees Department v. Han son, 351 U.S. 225 (1956); McCabe v. Atchison Topeka & Santa Fe R. Co., 235 U.S. 151 (1914); Nixon v. Condon, 286 U.S. 73 (1932). the fact that while the company had the right to prepare its own regulations, the City had the right to review and revise all of the company’s regulations. ^Since Respondent operates solely under the authority of the Public Utility Law, 66 Pa. Stat. Anno. §1171 et seq, any argument that utilities could lawfully terminate services arbi trarily at common law is irrelevant and must be rejected. Palmer v. Columbia Gas Co. o f Ohio, 479 F.2d at 162. Also see Reitman v. Mulkey, 387 U.S. 369 (1967); New York Times v. Sullivan, 376 U.S. 245 (1964). Furthermore, any such historically state sanctioned activity would in itself be considered state action since it was undertaken pursuant to state “custom or usage” within the purview of 42 U.S.C. §1983. See Adickes v. S.H.Kress Co., 398 U.S. 144 (1970). 32 In addition to Commission approval of Metropolitan Edison’s termination practices, the Pennsylvania statu tory and regulatory scheme also encourages such termination action. The Legislature has thus provided that there be prior Commission approval, including a finding of “compliance with existing laws”, for a variety of utility actions, including abandonment or termination of services. 66 Pa. Stat. Anno. §1122. However, at the same time, the Legislature also specifically exempted termination for nonpayment of a bill from the requirement of obtaining prior Commis sion approval and finding of compliance with the law, needed for almost all other utility company activities Id, § 1122(d). In further encouragement of Respondent’s termina tion practices, the Commission has promulgated several regulations regarding entry on private property and discontinuance of service. Thus, Pa. P.U.C. Electric Regulations, Rule 14D provides that utility personnel may have access to meters and equipment located in customers’ premises. In addition, Pa. P.U.C. Tariff Regulations, Section VIII, provides that all public utilities that “impose penalties upon its customers for failure to pay bills promptly shall provide in its posted and filed tariffs a rule setting forth clearly the circumstances and conditions in which the penalties are imposed.. .” Accordingly, the Respondent filed its tariff regarding termination of service with the Commission, as Metropolitan Edison Company Electric Tariff, Electric Pa. P.U.C. No. 41, Rule 15, pursuant to which it terminated Petitioner’s electrical service.35 3sCourts have found state action where public utilities were directly encouraged or authorized by state statutory or regulatory schemes to terminate utility services for nonpayment of bills. See Bronson v. Consolidated Edison Co, o f New York, Inc., supra; Buffington y. Gas Service Co., supra; Stanford v. Gas Service Co., supra. 33 Thus, the state has specifically “fostered and encour aged” the activity challenged herein. In addition to the specific authorization for and encouragement of Respondent’s practice challenged above, the Commonwealth has lent further affirmative support to Respondent’s activity by assuring Respond ent a monopoly in the provision of such services, thereby providing a further disincentive to Respondent to refrain from terminating services for nonpayment of a disputed bill. 3. The Commonwealth o f Pennsylvania has delegated to Respondent the Public Utility Commission’s statutory responsibility to assure that customers are not arbitrarily and unlawfully deprived o f “reasonably con tinuous” electrical services. The Commission has the duty to see to it that utility customers receive reasonably continuous service, with out unreasonable interruptions or delay, 66 Pa. Stat. Anno. §§1171, 1182, 1183, 1341, as part of its primary obligation of protecting the rights and interests of the public. However, both the Legislature and the Commission have delegated such responsibility, by promulgation of Tariff VIII, and Section 1122, 66 Pa. Stat. Anno. § 1122, and have thereby transferred such responsibility to the Respondent. Not only has the Commission delegated its statutory responsibility, but it has also specifically refused to promulgate additional rules and regulations regarding utility company collection and termination practices.36 36 The petitions of several low income consumers (including that of the Petitioner) filed with the Commission, requesting statewide rule making hearings on the issue of whether opportunity for a prior hearing should be required prior to termination of services for nonpayment of a disputed bid, were recently dismissed by the Commission on March 20, 1974, at Complaint Docket No. C.20089. 34 By thus approving the Respondent’s termination of service tariff, the Commission has authorized the Respondent to determine the reasonableness of its own termination actions. Such abdication of responsibility cannot conceivably be in furtherance of the Commis sion’s duty to “protect the public” . Citizens Water Co. o f Washington, Pa. v. Pa. P.U.C., 181 Pa. Super 301, 124 A.2d 123 (1956). It is submitted that the situation in the instant case is very similar to the situation in Boman v. Birmingham Transit Co., supra. It was held by the Fifth Circuit therein that: “Where, as here, the City delegated to its franchise holder power to make rules for seating of passengers and made the violation of such rules criminal . . . we conclude that the Bus Company to that extent became an agent for the State, and its actions in promulgating and enforcing the rule constitutes a denial of the Plaintiffs constitutional rights.” Id, 280 F.2d at 535.37 This Court has held that state “inaction” may be a significant indicia of state action. Hence, in Burton v. Wilmington Parking Authority, supra, this Court noted that: “ . . . the Authority could have affirmatively requir ed Eagle to discharge the responsibilities under the 37It is apparent that the sole distinction between the instant case and Borrnn is that the Respondent’s termination rule is not enforceable by criminal sanctions. However, Petitioner submits that this is, in effect, a distinction without a difference, since the consequences of her failing to pay Respondent’s bill resulted in a penalty to her that was at least as severe as that of a conviction for breach of the peace. Property rights are no less deserving of constitutional protections than are personal rights. Lynch v. Household Finance Corp., 405 U.S. 538 (1972). 35 Fourteenth Amendment imposed upon the private enterprise as a consequence of state participation. But no state may effectively abdicate its responsi bilities by either ignoring them or by merely failing to discharge them whatever the motive may be . . . By its inaction the Authority, and through it the state, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination.” 365 U.S. at 725. Similarly, in failing to impose due process require ments on Metropolitan Edison’s tariffs the state has effectively abdicated its responsibility in this area.38 See Fuentes v. Shevin, 407 U.S. 67, 93 (1972) in this regard. In conclusion, whether the above state action theories are applied separately or cumulatively to Metropolitan Edison, they show a picture of state involvement that has a significant effect on a customer’s relations with a public utility. Mrs. Jackson and her family were in no position to bargain with Metropolitan Edison for a delay or reconsideration in the termination decision; they could seek electricity from no one else in their area when their service was terminated. The utility’s regulations, which have the effect of law, and which were approved by the Commission, provided her in theory with nothing more than some notice. When no such notice was provided to Petitioner, she had no redress. The state had specifically exempted from the 38In this regard, it may be noted that state action, based in part upon state “inaction” was found in other utility termination cases. For example, see Bronson v. Consolidated Edison o f New York, Inc., 350 F.Supp. at 447, where the court noted that the statute authorizing termination of service did not go “far enough”, since it failed to also provide for due process protections. 36 requirement of prior Commission approval, the termina tion of service for nonpayment of bills. Finally, the company was legally empowered to enter Mrs. Jackson’s home to shut-off electricity at her meter. The end result is a denial of fundamental fairness to Mrs. Jackson and to other utility customers, and both Metropolitan Edison and the state must jointly bear a direct responsibility for this result. DUE PROCESS OF LAW REQUIRES THAT BEFORE PETITIONER S ESSENTIAL UTILITY SERVICES MAY BE TERMINATED, PETITIONER MUST BE PROVIDED WITH ADEQUATE PRIOR NOTICE AND OPPORTUNITY TO BE HEARD. A. Due process of law is necessary in order to prevent the arbitrary and erroneous depriva tion of a statutorily conferred entitlement or property right essential to life and health. This Court has repeatedly reaffirmed the principle that, “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy the right they must first be notified.” Baldwin v. Hale, 68 U.S. 223, 233 (1863), as cited in Fuentes v. Shevin, 407 U.S. 67, 80 (1972). Additionally, for those rights to be effective they “must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). A deprivation of a property interest or entitlement requires that the opportunity to be heard and to contest the deprivation be provided before the loss of the property or benefit. Fuentes v. Shevin, 407 U.S. 67 (1972); Bell v. Burson, 402 U.S. 535 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970); Boddie v, Connecticut, 401 U.S. 371 (1971). 37 The Pennsylvania Public Utility Law, by mandating that “reasonably continuous” utility service be provided on a non-discriminatory basis, 66 Pa. Stat. Anno. §§1171, 1144, confers by statute a benefit or entitlement to utility customers no less important, than other property interests or personal rights heretofore afforded due process protection by this Court. Fuentes v. Shevin, supra, (household goods); Bell v. Burson, supra (driver’s license); Goldberg v. Kelly, supra (welfare benefits).39 See also Board o f Regents v. Roth, 408 U.S. 564 (1972); Perry v. Sindermann, 408 U.S. 593 (1972). Electricity services, as with other utility services, have been described by this Court and lower courts as “necessities of life” .40 One lower federal court, in explaining the greater threat to life and health that arises from termination of heat or electricity as compared with the termination of welfare benefits considered in Goldberg v. Kelly, observed that “A person can freeze to death or die of pneumonia much more quickly than he can starve to death.”41 This 39 The great majority of lower courts considering the issue have held that utility customers possess a constitutionally protected interest not to have their utility service arbitrarily terminated. See, e.g., Palmer v. Columbia Gas Co., 342 F.Supp. 241, 244 (N.D., Ohio, 1972) affd, 479 F.2d 153 (6th Cir., 1973); Bronson v. Consolidated Edison Co., 350 F.Supp. at 447; Stanford v. Gas Service Co. 346 F.Supp. 717, 719-21 (D.Kan. 1972); Lamb v. Hamblin, Util. L.Rep. (State) §21, 850 (D., Minn., Nov. 30, 1972); Davis v. Weir, 328 F.Supp. 317, 321-22 (N.D., Ga., 1971); c f Lucas v. Wisconsin Electric Power Co., 438 F.2d 248, 646 n. 13 (7th Cir., 1972) cert. den. 409 U.S. 1114 (1973). 40Moose Lodge 107 v. Irvis, 407 U.S. 163, 173 (1972); Jones v. City o f Portland, 245 U.S. 217, 223 (1917); Stanford v. Gas Service Co., supra, 346 F.Supp. at 720; Davis v. Weir, supra, 328 F.Supp. at 321; Bronson v. Consolidated Edison Co. o f New York, Inc., 350 F.Supp. at 447. Also see infra, pp. 16-17. 41 Palmer v. Columbia Gas Co. o f Ohio, 342 F.Supp. 241, 244 (N.D., Ohio, 1972), affd. 479 F.2d 153. 38 observation became a tragic reality this year when the media reported the deaths of utility customers whose services were summarily terminated.42 Such utility terminations most often cause their greatest hardship on the poor and elderly.43 See Palmer v. Columbia Gas o f Ohio, supra, 479 F.2d at 169; Shelton, “The Shutoff of Utility Services for Non-payment: A Plight of the Poor,” 46 Washington L.Rev. 745 (1971); Note, “Public Utilities and the Poor” , 78 Yale L.J. 448 (1969).44 Certainly the facts in this case show the suffering experienced by a low income mother living alone with two minor children all of whom had to live in their home for eight days and nights without lighting, adequate heat, or hot water for cooking or hygienic purposes. The temporary judicial relief obtained may well have prevented the colds experienced by the two children in this period from becoming more serious threats to their health. The current situation involving unfettered termina tion power leads to erroneous terminations and constitutes an additional reason to apply due process protections in utility termination situations. Thus, one federal court was moved to comment on the “Orwellian nightmare of computer control which breaks down “Elderly Couple Found Frozen in Syracuse Home”, The New York Times, Dec. 26, 1973 (electricity termination making gas furnace inoperative); “Man, Seventy-one, Freezes to Death After Utility Shuts Off Gas”, Boston Globe, p. 17 (Feb. 9, 1974); “Tragedies: A Winter’s Tale”, Newsweek, p. 28 (Jan. 8* 1974). 43See also Amicus Brief of the National Consumer Law Center. 44The casual observation of the Court of Appeals that there is no threat to life from utility termination is thus contradicted by real events. (A-88). 39 through mechanical and programmers’ failures and errors. 5 The monopoly nature of the utility service further gives little incentive to qualify the unrestricted use of the termination power in order to be competitive or to retain good will from such customers. See Note, 86 Harv. L.Rev. at 1477. Abuse of the termination power is common with utility employees evoking a “shocking ly callous and impersonal attitude” toward customers.* 46 The irresponsible conduct of the Metropolitan Edison representative in this case is apparent when he indicated to Mrs. Jackson that a $30.00 payment would be required and would be accepted four days later, and, instead of returning to collect it, sent or allowed other company representatives to come and cut-off the electricity on that day. Arbitrariness and unfairness further results from questionable billing practices and erroneous termina tions despite full payment of the bill. See Note, 48 N.Y.U. L.Rev. supra at 515. Further, the unequal bargaining position of the consumer, particularly the low income consumer, makes it unlikely for him or her either to be familiar with or able to afford litigation remedies for a utility dispute.47 cf., Fuentes v. Shevin, Bronson v. Consolidated Edison Co. o f New York, supra, 350 F.Supp. at 444. 46Palmer v. Columbia Gas o f Ohio, supra, 342 F.Supp. at 243, affd 479 F.2d 153. An employee’s response to a customer who claimed he paid a bill was “Tough. Pay the bill again.” 479 F.2d at 158. Another advised a cut-off victim, “Run around to keep warm.” Id. at 168. 47Palmer v. Columbia Gas o f Ohio, 479 F.2d at 748-52. Other limitations on tort remedies include the delay and burden someness to a customer who would pay an unjust bill to avoid loss of service and expenses of litigation. See Note, 86 Harv. L.Rev. at 1477, n. 26. 40 407 U.S. at 83 n. 13 (1972). Finally, customers often have valid defenses and bases for contesting bills for the above and other reasons.48 Mrs. Jackson herself questioned, to no avail, whether she was legally liable for the utility services for which she claimed Dodson had contracted. It is apparent that “unjust terminations exact a high personal and societal cost, as measured in demoraliza tion and frustration, and are offensive to our society’s basic notions of fairness.”49 It was this kind of frustration caused by a “lack of accessible and visible means of establishing the merits of grievances” that was highlighted as a key factor in the civil disorders of the 1960’s.50 It is submitted that this Court’s rationale for applying due process protection in Goldberg v. Kelly, is certainly as applicable to the case of utility termina tions. Thus: “ [T]he stakes are simply too high . . . and the possibility for honest error or irritable misjudg- 48 Recognized customer claims and defenses which could be raised at prior hearings if the opportunity were provided include: overcharging mistakes and failure to record full payment or outstanding bills, Bronson, 350 F.Supp. at 445, supra, 342 F.Supp. at 243; inaccurate or inoperative meter, Crews v. Jacksonville Elec. Authority, Pov. L.Rep. §13,647 (Fla. Cir. Ct., 1971); inadequacy of service due to faulty utility equipment, York Tel. and Tel. Co. v. Pa. P.U.C., 181 Pa. Super. 11, 121 A.2d 605 (1956); customer’s refusal to pay debt of prior owner or tenant, Tyrone Gas and Water Co. v. P.S.C., 77 Pa. Super. 292 (1921); denial of service to wife upon husband’s refusal to pay his bill, Southwestern Bell Tel. Co. v. Batesmar, 266 S.W.2d 289 (Ark. 1954) See also Shelton, 46 Wash. L.Rev. at 763-64. 49Note, supra, 86 Harv. L.Rev. at 1482. 50 See Report of the Nat’l Advisory Comm’n on Civil Disorders, 291 (1968). See also Amicus Brief of National Consumer Law Center, page 9, quote from “Mark Twain’s Notebook.” 41 ment too great, to allow termination . . . without giving . . . the recipient a chance . . . to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal.” 397 U.S. 254 at 266 (1970). B. Due process for utility termination situa tions requires adequate prior notice of the nature and means of resolution of the dispute, and an opportunity for an oral hearing, prior to the termination of essential utility services. While “due process is perhaps the least frozen concept of our law”, Griffin v. Illinois, 378 U.S. 1 (1958) (Frankfurter J/concurring), it is apparent that when “protected interests” are at stake, the right to some kind of prior hearing is required. Perry v. Sindermann, 408 U.S. 593 (1972); Board o f Regents v. Roth, 408 U.S. 564, 569-70 (1972). In this case, the Petitioner had a statutory entitlement to the continued receipt of electrical services to the extent that such services could not be terminated in the absence of due process of law. 66 Pa. Stat. Anno. §1171. In this regard, it has been held by this Court that property interests requiring constitu tional protection “extend well beyond the actual ownership of real estate, chattels or money” , Roth, supra at 572. They extend as well to “safeguard . . . the security of interests that a person has acquired in specific benefits.” Id. See also California Department o f Human Resources v. Java, 402 U.S. 121 (1971); Goldberg v. Kelly, supra. Thus, to have a property interest in a benefit, a person must have a legitimate claim of entitlement to it. Since protection must be afforded to “those claims upon which people rely in their daily lives,” such reliance must not be “arbitrarily under 42 mined.” Roth, supra at 576-577. It cannot be doubted in this case that Mrs. Jackson and her children were arbitrarily deprived of an entitlement upon which they relied as a necessity of life. Due process requires minimally that prior notice be provided that is “reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” Grannis v. Ordean, 234 U.S. 385 (1914); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314 (1950); Fuentes v. Shevin, 407 U.S. 67, 80 (1972), at a hearing at a meaningful time and in a meaningful manner, Arm strong v. Manzo, 380 U.S. 545 (1965); Boddie v. Connecticut, 401 U.S. 371 (1971). Such hearing must take place before the utility customer is condemned to suffer a “grievous loss” . Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concuring). No state interest is present herein which warrants a deprivation prior to the hearing. Fuentes v. Shevin, 407 U.S. 67 (1972). The grievous loss to the customer outweighs any competing state interest, as Mrs. Jackson and her children can readily affirm. A utility customer must be given a notice suffici ently in advance to permit adequate opportunity to prepare for and be present at the hearing. Mullane v. Central Hanover Bank and Trust Co., supra. The notice must provide the customer with the information he needs to quickly and intelligently take available steps to prevent the threatened termination of service. Palmer, 479 F,2d at 166; Bronson, 350 F.Supp. at 450. Thus, the customer should be advised of the possibility of resolution of the dispute by contacting a particular company representative. Palmer, supra at 166. Further 43 more, the notice should advise of the right to either appeal to the state regulatory commission or to have a de novo formal or informal hearing before the regulatory commission. Bronson, supra at 449. Of course, the customer must be advised of the right to continued utility service in the event that the dispute resolution procedure is invoked. Palmer, supra, 166. While the reasonableness of any notice procedure must be considered in the light of the circumstances of each particular case, Covey v. Town o f Somers, 351 U.S. 141 (1956), it is submitted that the above notice requirements are the very rudiments of a fair warning procedure.51 There is currently insufficient or no notice to the consumer before termination despite requirements of some notice. Notwithstanding Metropolitan Edison’s tariff approved by the Commission, providing for “reasonable notice”, no notice whatsoever was provided to Mrs. Jackson prior to or on the Monday she was expecting a company representative to receive a $30.00 payment; she made fruitless phone calls to company employees, even to the home of one of the employees, to protest and seek some redress. This case is illustrative of a pattern which has emerged from other federal utility termination cases.52 In addition, this case and 51 This Court has stressed the fact that particularly the uneducated, uninformed consumer cannot be presumed to know his legal rights or how to seek redress for them. Fuentes v. Shevin, 407 U.S. at 83 n.13. 52 In Palmer “shut-offs [were] sometimes being made without warning . . . [W] hen the collectors went out to shut-off gas, they frequently did so without any announcement whatever to the consumer, even though the consumer was sitting right in his house, so that the first notice he would have of the shut-off was that his house got cold, or his kitchen range would not light. . .” 342 F.Supp. at 243. Ohio law requires 24 hours’ notice before workmen could enter the home and disconnect the meter. Id. at 245. In Davis v. Weir, absolutely no notice was provided the consumer-tenant before water service was shut-off. 328 F.Supp. at 320. 44 others attest to the inadequacy of notice when and if it does come. Although Mrs. Jackson was told that money was owing she was never even presented with any bills or explanation why she, rather than Dodson, should pay the entire sum allegedly owing.53 Nor was she warned that her electricity would be discontinued for failure to pay the bill. Due process also requires an opportunity to be heard in a manner appropriate to the nature of the case. The hearing must naturally take place before an impartial third party. Morrissey v. Brewer, 408 U.S. 471 (1972); Goldberg v. Kelly, 397 U.S. at 267-71. The burden of proof should be placed on the utility company to prove that the bill is due. Wood v. City o f Auburn, 87 Me. at 293. In addition, the utility customer must be permitted to examine the company’s records in advance, cross examine adverse witnesses and present his or her own case, with the assistance of a representative, if necessary. Goldberg v. Kelly, supra, at 267-271. The experience with utilities has shown that their shut-off and complaint procedures are grossly inade quate with “unresponsiveness or ‘runarounds’ the only answer to [the customer’s] inquiries.” Bronson, supra, 350 F. Supp. at 448.54 No hearings are provided and 53In Bronson the consumer merely received a 3" x 8" slip of paper with a bare one sentence “we are sorry” notice that the court found constitutionally inadequate. 350 F.Supp. at 450. See also Palmer, supra, 342 F.Supp. at 242-44. 54See also, e.g., Palmer v. Columbia Gas Co., 342 F.Supp. at 243-44; Note, supra, 48 N.Y.U. L.Rev. supra, at 517, 45 recourse to regulatory commissions for hearings have been generally fruitless.55 In addition, the alternative Qf “pay first and litigate later” as sanctioned by the Court of Appeals at (A-91) is simply a “non-alternative”56 Bronson v. Consolidated Edison Co. o f New York, 350 F. Supp. at 449, for poor persons. Recourse to other formal or informal remedies are equally inadequate.57 It should be noted that a formal adjudicatory hearing, which the state regulatory agency could schedule and conduct, need not be the first or sole method of dispute resolution. Utilities may wish to establish complaint bureaus, under state regulation, before formal hearings are scheduled. These proceedings will undoubtedly lead to the prompt and low-cost resolution of most termination disputes, leaving the more protracted or complex disputes for the formal adjudicatory hearing. The experience in New York State, where the dual conference-type hearing and 55 The Petitioner herself filed a complaint with the Pa. Public Utility Commission to seek rulemaking hearings to establish rules for hearings prior to termination of service but the complaint, deemed a petition, was summarily dismissed. See footnote No. 36 supra. 56 See Shelton, “The Shutoff of Utility Services for Nonpay ment: A Plight of the Poor.” 46 Wash. L.Rev. 745, 748-52 (1971). The Third Circuit’s reference below to small claims courts 438 F.2d at 760 n. 11. entirely ignores the fact that these bodies have no equity powers and cannot restore terminated service, and further, that consumers are never given notice and do not otherwise know that these bodies exist to deal post-facto with billing disputes. See also Fuentes v. Shevin, 407 U.S. 67, 83, n. 13 (1972). 57 See contra, Lucas v. Wisconsin Electric Power Co., 466 F.2d at 649, where the court held that adequate administrative remedies in fact existed in that case. 46 formal evidentiary-type hearing system utilizing impar tial Public Service Commission officers has been in use for some time, concretely demonstrates the workability and effectiveness of the due process procedures suggested above.58 The decision below relies heavily on the view that utility service is not so important as to warrant due process protection. This is refuted by this Court’s decisions above protecting similar interests or property entitlements. Board o f Regents v. Roth, 408 U.S. 564 (1972). This Court has further rejected as constitu tionally deficient, the procedures allowing for the taking of property pending a final judgment and those allowing for posting of a bond or security to regain property. Fuentes v. Shevin, 407 U.S. at 72-73. The Court below also accepted the premise that utility service could be arbitrarily or wrongfully terminated and the wrong remedied by full payment of the disputed bill followed by a claim for a refund, in court if necessary. 483 F.2d at 760-61. (A-89). Even assuming the validity of the assumption that claiming and suing for a refund are available remedies, this premise ignores the recent holding of this Court that: “ [N]o 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.’ Stanley v. Illinois, 405 U.S. 645, 647 . . .” 58See Amicus Brief of the Public Service Comm’n of the State of New York; see also Note, supra, 86 Harv. L.Rev. at 1503. 47 CONCLUSION For the foregoing reasons, Petitioner respectfully requests that this Court reverse the Judgment and Order of the Third Circuit Court of Appeals, and hold that Respondent did act under color of law in terminating Petitioner’s electrical sendees without the adequate prior notice and opportunity to be heard required by due process of law. Petitioner requests that this case be remanded to the district court for a determination and further proceedings in accordance with the opinion herein. Respectfully submitted: ALAN LINDER, Esquire EUGENE F. ZENOBI, Esquire J. RICHARD GRAY, Esquire TRI-COUNTY LEGAL SERVICES 53 North Duke Street, Suite 457 Lancaster, Pennsylvania 17602 (717) 397-4236 Attorneys for Petitioner Of Counsel: JONATHAN M. STEIN, Esquire April 26, 1974 la APPENDIX A STATUTES , REGULATIONS AND TARIFFS A. P en n sy lv an ia Public U tility Code P enn sy lv an ia S ta tu tes A nnotated , T itle 66 , Sections: . a . 1452. Commission estab lish ed ; term s of office; qualifica tions of m em bers; chairm an; com pensation; quorum (a) A comm ission to be known as the P enn sy lv an ia Public Utility Commission is h e reb y c re a te d . The comm ission sh a ll consist of five m em bers who sh a ll be appoin ted by the G o v ern o r, by and w ith the advice and consent of tw o -th ird s of a ll the m em bers of the S enate . The comm ission e rs f irs t appoin ted u n d e r th is a c t, sh a ll continue in office for term s of two, fo u r , s i x , e ig h t , and ten y e a rs , r e sp e c tiv e ly , from the effective date of th is ac t, bu t th e ir su c c esso rs sh a ll each be appointed for a term of ten y e a rs . No com m issioner, upon the ex p ira tio n of h is term as a fo re sa id , sh a ll con tin u e to hold office u n til h is su ccesso r sha ll be duly appointed or sha ll be q u alified . Each com m issioner, at the time of h is appointm ent and qualific- c a tio n , sha ll be a re s id en t of the Commonwealth of P e n n sy lv a n ia , and sha ll have been a qualified e lector th e re in for a p e rio d of at least one y e a r next preceeding h is appointm ent, and sha ll also be not less th an th ir ty y e a rs of age. (b) A mem ber d esig n ated by the G overnor sha ll be th e chairm an of the comm ission d u rin g such m em ber's term of office. When p re se n t , the chairm an sh a ll p re s id e at all m eetings , bu t in h is absence a m em ber, d e s ig n ated by the ch airm an , sha ll p re s id e and sha ll e x e rc is e , for the time b e in g , a ll the pow ers of the ch a irm a n . (c) Each of the com m issioners sha ll rece iv e an annual sa la ry of n in e teen th o u san d d o lla rs ($19,000,00), except the chairm an , who sha ll rece iv e an annual sa la ry of tw enty thousand d o lla rs ($20,000.00) . (d) T h ree m em bers of the comm ission sha ll constitu te a quorum who, for a ll p u rp o s e s , in c lu d in g the m aking of any o rd e r o r the ra tifica tio n of any act done or o rd e r made by one or more of the co m m issioners, m ust act unanim ously . 1937, M arch 31, P .L . 160, §1; 1943, M arch 31, P .L . 32, §1; 1949, M arch 31, P .L . 369, No. 32, 81, 1957, Ju ly 16, P .L . 949, No. 408, §1. b . §461. Pow ers and du ties of com m ission. The P ennsy lvan ia Public U tility Commission sh a ll ex erc ise the pow ers and perform the d u ties e x erc ised and perform ed p r io r to the effective date of th is act by the Public Serv ice Commission of the Commonwealth of P en n sy lv an ia , and any pow ers and du ties subseq u en tly vested in and im posed upon the P enn sy lv an ia Public U tility Commission by law . 1937, M arch 31, P .L . 160, §10. c . §462. A dditional pow ers and du ties The P ennsy lvan ia Public U tility Commission sha ll have the pow er and its du ties sha ll be - (a) To ad m in ister and enforce the ac t, app roved the tw en ty -e ig h th day of May, one th o u san d n ine h u n d re d th ir ty -se v e n (Pam phlet Law s, one thousand f if ty - th re e ) , desig n ated as the "Public U tility Law" , as am ended and su p p le m ented , o r any law h e rea fte r enacted for the reg u la tio n of p u b lic u tilitie s . 2a (b) To certify to the D epartm ent of H ealth any qu estio n of fact re g a rd in g the p u rity of w ater su p p lied to the p u b lic by any p u b lic se rv ice company or . p ub lic u tility over w hich it has ju r is d ic t io n , when any such question a r is e s in any co n tro v ersy or o th er p ro ceed in g befo re i t , and upon the determ ination of su ch question b y the D epartm ent of H ealth , to in co rpora te the find ings of the b o a rd th e reo n in i ts decision upon the co n tro v ersy or o ther p ro ceed in g out of w hich the qu estio n a ro s e . 1937, M arch 31, P .L . 160, §11; 1941, Ju ly 8, P .L . 284, §1. d . §1101 Short title T h is act sha ll be k n o w n , and may be c ite d , as the "Public U tility L aw ". 1937, May 28, P .L . 1053, a r t . I , §1. e. §1121 O rganization of p u b lic u tilitie s and b eg in n in g of se rv ice . Upon the ap proval of the com m ission, ev idenced b y its certificate of p ub lic convenience f irs t had and o b ta in e d , and not o th e rw ise , it sha ll be lawful for any p roposed p u b lic u t i l i ty . (a) To be in c o rp o ra te d , o rg an ized , or created ; P ro v id e d , T hat ex is tin g law s re la tiv e to the in co rp o ra tio n , o rg an izatio n , and c rea tion of such p ub lic u tilitie s sha ll f irs t have been com plied w ith , p r io r to the app lication to the commission for its certifica te of p u b lic co n v en ien ce . (b) To beg in to o ffe r , r e n d e r , fu rn ish , o r su p p ly se rv ice w ith in th is Commonwealth, 1937, May 28, P .L . 1053, a r t . I I , §201. (em phasis added) f. §1122. Enum eration of facts re q u ir in g certificate Upon ap proval of the com m ission, ev idenced by its certifica te of pub lic con ven ience f irs t had and o b ta in e d , and upon com pliance w ith ex is tin g la w s , and not o therw ise , it sha ll be lawful: (a) For a fo reign p ub lic u tility to ob tain the r ig h t to do b u s in e ss w ith in th is Commonwealth, if ex is tin g law s perm it such foreign p u b lic u tility to ex erc ise its pow ers and fran ch ise s w ith in th is Commonwealth. (b) For any p ub lic u tility to renew its c h a r te r , o r obtain any additional r i g h t , p o w e r, fran ch ise , o r p r iv ile g e , by any amendm ent o r supplem ent to i ts c h a r te r , or o th e rw ise . (o) For any p ub lic u tility to beg in the ex erc ise of any additional r i g h t , pow er, f ra n c h ise , o r p r iv ile g e . (d) For any p u b lic u tility to d isso lv e , or to abandon or s u r r e n d e r , in whole o r in p a r t , any s e rv ic e , r i g h t , p o w e r, fran ch ise , or p riv ileg e : P ro v id e d , T hat the p ro v isio n s of th is p a rag ra p h sha ll not app ly to d iscontinuance of se rv ice to a p a tro n for nonpaym ent of a b i l l , o r upon re q u est of a p a tro n ■ (em phasis a d d e d ) . (e) For any pub lic u t i l i ty , excep t a common c a r r ie r by ra ilro ad subject to the In ters ta te Commerce A ct, to acq u ire from , o r to tra n s fe r to , any p e rso n or co rp o ra tio n , in c lu d in g a m unicipal co rpora tion , by any method or device w hatso e v e r , in c lu d in g a conso lida tion , m e rg e r , sale o r le a se , the title to , or the p o ssessio n or use of, any tang ib le o r in tan g ib le p ro p e rty u sed or u sefu l in the public se rv ice : P ro v id e d , h o w ev er, That such ap proval sha ll not be re q u ire d - (1) if the undep rec ia ted book value of the p ro p e rty to be acq u ired or t ra n s fe rre d does not exceed one thousand d o lla rs; or (2) if the u n d ep rec ia ted book va lue of the p ro p e rty to be acq u ired or t ra n s fe r re d does not exceed the le s se r of - (a) two p e r centum of the u n d ep rec ia ted book value of a ll of the fixed a sse ts of such public u t i l i ty , o r (b) five thousand d o lla rs in the case of p e rso n ality or 3a fifty tho u san d d o lla rs in the case of rea lty ; o r (3) if the p ro p e rty to be acq u ired is to be in s ta lled new as a p a r t of o r consum ed in the operation of the used and u se - 'fu l p ro p e rty of su ch p u b lic u tility ; o r (4) if the p ro p e rty to be tra n s fe r re d by such pub lic u tility is o b so le te , w orn out o r o therw ise u n se rv ic e a b le . But excep tions (1) , (2) , (3 ) , and (4) sha ll not be a p p lic ab le , and ap p ro v al of the comm ission ev idenced b y a certifica te of p u b lic convenience sha ll be r e q u ir e d , if any such acqu isition or tra n s fe r of p ro p e rty involves a t ra n s fe r of p a tro n s . (f) For any p u b lic u tility to a cq u ire five p e r centum or m ore of the voting cap ita l stock of any c o rp o ra tio n . (g) For any m unicipal co rpora tion to a c q u ire , c o n s tru c t, o r b eg in to operate any p la n t , eq u ip m en t, o r o th er fac ilities for the re n d e rin g or fu rn ish in g to the p ub lic of any p u b lic u tility se rv ice beyond its co rp o ra te lim its , 1937, May 28, P .L . 1053, a r t . II, §202; 1938, Sp . S e s s . , Sep t. 28, P .L . 44, §1; 1939, June 19, P .L . 419, §1. g . §1123 P ro ced u re to obtain c ertific a tes of p u b lic convenience (a) E very app lication for a certifica te of p u b lic convenience sh a ll be made to the com m ission, in w r i t in g , be v e rif ied by oath o r a ffirm ation , and be in such fo rm , an d contain su ch in fo rm ation , as the commission may re q u ire by its r e g u la tio n s . A certifica te of p ub lic convenience sh a ll be g ra n te d b y o rd e r of th e com m ission , only if and when the commission sha ll find or determ ine that the g ran tin g of such certifica te is n ece ssa ry or p ro p e r for the se rv ice accom odation, co n v en ien ce , o r safety of the p u b lic ; and the commission in g ra n tin g such c e r tif ic a te , may impose such conditions as it may deem to be ju s t and re a so n a b le . In ev ery ca se , the comm ission sha ll make a finding or determ ination in w r i t in g , sta tin g w h e th er o r not its approval is g ra n te d . Any ho ld er of a certifica te of p u b lic convenience, e x e rc is in g the au th o rity con ferred by such c e r tif ic a te , sha ll be deem ed to have w aived any and all objections to th e term s and conditions of such c e r tif ic a te . (b) For the p u rp o se of en ab ling the commission to make such find ing or determ ination , it sha ll hold such h e a r in g s , w hich sh a ll be p u b lic , an d , before or a fte r h e a r in g , it may make such in q u ir ie s , p h y sica l ex am inations, v a lu a tions , and in v estig a tio n s , and may re q u ire such p la n s , sp ec if ica tio n s , and estim ates of co s t, as it may deem n ece ssa ry or p ro p e r in en ab ling it to reach a find ing or de te rm in a tio n . 1937, May 28, P .L . 1053, a r t . II, §203. (em phasis a d d e d ) . h . §1124. C ertain ap p ro p ria tio n s by the r ig h t of em inent domain p ro h ib ited N either a p roposed dom estic p ub lic u tility h e rea fte r in co rp o ra ted nor a fo re ign pub lic u tility h e rea fte r au tho rized to do b u s in e ss in th is Commonwealth sha ll ex erc ise any pow er of em inent domain w ith in th is Commonwealth u n til it sha ll have rece iv ed the certifica te of p u b lic convenience re q u ire d by section 201 of th is a c t. 1937, May 28, P .L . 1053, a r t . II, §204, ad d ed , 1963, A ug. 28, P .L . 1225, §3. 1 1. §1141. R ates to be ju s t and re a so n a b le . E very ra te m ad e , dem an d ed , o r rece iv ed by any p ub lic u t i l i ty , o r by any two or more p u b lic u tilitie s jo in tly , sha ll be ju s t and re aso n a b le , and in conform ity w ith reg u la tio n s o r o rd e rs of the commission; P ro v id e d , T hat only pub lic u tility se rv ice b e in g fu rn ish e d or re n d e re d by a m unicipal co rp o ra tio n , o r by the operating agencies of any m unicipal c o rp o ra tio n , beyond its corpora te lim its , sha ll be sub ject to reg u la tio n and contro l by the comm ission as to r a te s , w ith the same fo rc e , and in like! 4a m an n e r, as if su ch se rv ice w e re re n d e re d by a p u b lic u tility . 1937, May 28, P .L . 1953, a r t . I l l , §301; 1939, M arch 21, P .L . 10, No. 11, §2. j . §1142. T ariffs; filing and inspection U nder su ch reg u la tio n s as the comm ission may p r e s c r ib e , ev e ry p ub lic u tility sha ll file w ith the com m ission, w ith in such time and in such form as the commission may d e s ig n a te , ta riffs show ing a ll ra te s estab lish ed by it and collected or en fo rc e d , o r to b e co llected or en fo rc e d , w ith in the ju risd ic tio n of the com m ission. The ta riffs of any pub lic u tility a lso sub ject to the ju risd ic tio n of a Federal reg u la to ry body sh a ll c o rre sp o n d , so fa r as p ra c tic a b le , to the form of those p re sc r ib e d b y such F ed eral re g u la to ry b o d y . E very p u b lic u tility sh a ll keep copies of such ta riffs open to p u b lic inspection u n d e r such ru le s and reg u la tio n s as the commission may p re s c r ib e . 1937, May 28, P .L . 1053, a r t . III, §302. k . §1144. D iscrim ination in ra te s No p u b lic u tility s h a l l , as to r a te s , make or g ran t any un reaso n ab le p re fe ren ce or advantage to any p e rs o n , co rp o ra tio n , o r m unicipal co rp o ra tio n , o r sub ject any p e rso n , co rp o ra tio n , o r m unicipal corpora tion to any un reaso n ab le p re ju d ice o r d isad v an tag e . No p ub lic u tility sha ll e s tab lish o r m aintain any u n reasonab le d ifference as to r a te s , e ith e r as betw een localities o r as betw een c lasses of s e rv ic e . U nless spec ia lly au th o rized by th e com m ission, no p ub lic u tility shall m ak e , d em and , or rece iv e any g re a te r ra te in th e ag g reg a te for the tran sp o rta tio n of p a sse n g e rs o r p ro p e rty of th e same c la s s , o r for the tran sm iss io n of any m essage or conversa tion for a sh o rte r th an for a longer d istance over the same line o r route in the same d irec tio n , the sh o r te r b e in g in c luded w ith in the longer d is ta n c e , or any g re a te r ra te as a th ro u g h ra te th an the ag g reg a te of the in term ediate r a te s . Nothing h e re in contained sh a ll b e deem ed to p ro h ib it the estab lishm ent of reasonab le zone o r g roup system s , o r c lassifica tions of ra te s o r , in the case of common c a r r ie r s , the issu an ce of e x cu rs io n , com m utation, o r o th er spec ia l t ic k e ts , at specia l r a te s , or the g ra n tin g of n o n tran sferab le free p a s s e s , o r p a sse s at a d iscount to any o ffice r , em ployee, o r pen sio n er of su ch common c a r r i e r . No ra te ch arg ed by a m unicipality for any pub lic u tility se rv ice re n d e re d o r fu rn ish e d beyond its co rpora te lim its shall be co n sid ered un ju stly d isc rim inato ry so le ly by reaso n of the fact that a d ifferent ra te is ch arg ed for a sim ilar se rv ice w ith in i ts corpora te l im its . 1937, May 28, P .L . 1053, a r t . I ll, §304. 1 1. §1148. V oluntary changes in ra te s (a) U nless the comm ission o therw ise o r d e r s , no p ub lic u tility sh a ll make any change in any ex is tin g and duly e s tab lish ed r a te , excep t after six ty days' notice to the com m ission, w hich notice sha ll p la in ly sta te the changes p roposed to be made in the ra te s th en in fo rc e , and the time w hen the changed ra te s w ill go into effec t. The p u b lic u tility sha ll also g ive su ch notice of the p ro p o sed changes to o th er in te re s ted p e rso n s as the comm ission in its d isc re tio n may d i r e c t . All p roposed changes sh a ll be show n by filing new ta r i f f s , o r supplem ents to ex is tin g ta riffs filed and in force at the tim e . The com m ission, for good cause show n, may allow changes in r a te s , w ithout re q u ir in g the s ix ty d ay s ' n o tice , u n d e r such conditions as it may p re s c r ib e . (b) W henever th e re is filed w ith th e comm ission b y any pub lic u tility any ta riff sta tin g a new r a te , the comm ission m ay , e ith e r upon com plaint o r upon its own m otion, upon reasonab le n o tic e , e n te r upon a h ea rin g concern ing the law fulness of such r a te , and p end ing such h earin g and the decision th e re o n , the com m ission, 5a upon filing w ith such ta riff and d e liv e rin g to the pub lic u tility affected th e reb y a statem ent in w ritin g of its reaso n s th e re fo r , m ay , at any time befo re it becom es effective , su sp en d the operation of such ra te for a p eriod not longer than six months from the tim e such ra te w ould o therw ise become e ffec tive , and an add itional period of not m ore than th ree m onths p en d in g such d e c is io n . The ra te in force when the ta r if f s ta tin g the new ra te was filed sh a ll continue in force d u rin g the p e rio d of su sp e n s io n , u n less the comm ission sha ll e s tab lish a tem porary ra te as au tho rized in section th ree h u n d re d ten of th is act. The comm ission sh a ll con s id e r the effect of such su sp en sio n in finally determ in ing and p re sc r ib in g the ra te s to be th e re a fte r ch arg ed and collected by such p ub lic u t i l i ty . (c) If, a fte r such h e a r in g , the comm ission finds any such ra te to be u n ju s t, or u n re aso n a b le , o r in anyw ise in v io lation of law , the comm ission sha ll d e te r mine the ju s t and reasonab le ra te to be ch arg ed or app lied by the pub lic u tility for the se rv ice in q u estio n , and sh a ll fix the same by o rd e r to be se rv ed upon the p ub lic u tility ; and such ra te sh a ll th e re a fte r be o b se rv ed u n til changed as p ro v ided by th is act. 1937, May 28 P .L . 1053, a r t . I ll, §308. m. §1149. Rates fixed on com plaint. W henever the com m ission, a fte r reasonab le notice and h e a r in g , upon its own motion or upon com plaint, finds that the ex is tin g ra te s of any p u b lic u tility for any se rv ice a re u n ju s t, u n reaso n ab le , o r in anyw ise in v io lation of any p ro v isio n of la w , the comm ission sh a ll determ ine the ju s t and reasonab le ra te s (includ ing maximum o r minimum ra te s ) to be th e re a fte r o b se rv ed and in force and sha ll fix the same by o rd e r to be se rv ed upon the pub lic u t i l i ty , and such ra te s sha ll constitu te the legal ra te s of the p u b lic u tility u n til changed as p ro v ided in th is a c t. W henever a p u b lic u tility does not itse lf p roduce or genera te that w hich it d is tr ib u te s , tran sm its , o r fu rn ish es to the pub lic for com pensation , bu t ob tains the same from ano ther s o u rc e , the commission sh a ll have the pow er and au tho rity to in v estig a te the cost of such p roduction or g enera tion in any in v estiga tion of the reaso n ab len ess of the ra te s of such p u b lic u tility . 1937, May 28, P . L . 1053, a r t . I ll, §309. n . §1171. C h arac te r of se rv ice and fa c ilitie s . E very pub lic u tility sh a ll fu rn ish and m aintain ad eq u a te , e ffic ien t, s a fe , and reasonab le se rv ice and fa c ili t ie s , and sha ll make all such r e p a i r s , c h a n g e s , a lte ra tio n s , su b s ti tu tio n s , ex tensions , and im provem ents in o r to such se rv ice and facilities as sha ll be n ecessa ry or p ro p e r for the accom odation, convenience and safety of its p a tro n s , em ployees, and the p u b lic . Such se rv ice also shall be reaso n ab ly continuous and w ithout un reaso n ab le in te rru p tio n s or d e la y . Such se rv ic e and facilities sha ll be in conform ity w ith the reg u la tio n s and o rd e rs of the com m ission. Subject to the p ro v isio n s of th is act and the reg u la tio n s oi* o rd e rs of the com m ission, ev ery pub lic u tility may have reaso n ab le ru le s and re g u la tions govern ing the conditions u n d e r w hich it sh a ll be re q u ire d to re n d e r se rv ice . Any pub lic u tility se rv ice b e in g fu rn ish e d o r re n d e re d by a m unicipal co rporation beyond its corpora te lim its sha ll be sub ject to reg u la tio n and contro l b y the commission as to se rv ice and ex tensions w ith the same force and in like m anner as if such se rv ice w ere re n d e re d by a p u b lic u tility . 1937, May 28, P . L . 1053, a r t . IV, §401. 0. §1172. D iscrim ination in se rv ice No p ub lic u tility sh a ll, as to se rv ic e , make or g ran t any un reaso n ab le p re fe r - 6a ence o r advan tage to any p e rso n , co rp o ra tio n , o r m unicipal co rp o ra tio n , o r sub ject any p e rso n , co rp o ra tio n , o r m unicipal co rpora tion to any u n reasonab le p re ju d ice o r d isad v an tag e . No p u b lic u tility sh a ll e s tab lish o r m aintain any unreasonab le d ifference as to se rv ic e , e ith e r as betw een localities o r as betw een c lasses of s e rv ic e , bu t no th ing h e re in contained sha ll be deem ed to p ro h ib it the estab lishm ent of reaso n ab le c lassifica tions of se rv ic e . 1937, May 28 P L 1053 a r t . IV, 8402. p . §1182, S tandards of se rv ice and facilities The comm ission m ay , afte r reaso n ab le notice and h e a r in g , upon its own motion or upon com plaint, p re sc r ib e as to se rv ice and fa c ilitie s , in c lud ing the c ro ss in g of fac ilitie s , ju s t and reaso n ab le s ta n d a rd s , c la ss ifica tio n s , reg u la tio n s and p rac tice s to be fu rn ish e d , im posed, o b se rv ed , and followed by any or a ll pub lic u tilitie s; p re sc r ib e adequate and reaso n ab le s tan d ard s for the m easurem ent of q u a n tity , q u a lity , p r e s s u re , in itia l vo ltag e , o r o ther condition p e rta in in g to the su p p ly of the se rv ice of any and all p u b lic u tilitie s; p re sc r ib e reasonab le reg u la tio n s for th e exam ination and te s tin g of such se rv ic e , and for the m easurem ent thereof; p re sc r ib e o r approve reaso n ab le r u l e s , r e g u la tio n s , sp ec ifica tio n s , and s ta n d a rd s to se c u re the accu racy of all m eters and ap p liances for m easurem ent; and p ro v id e for the exam ination and tes tin g of any and all app liances used for the measurie ment of any se rv ice of any p u b lic u tility . 1937, May 28, P .L . 1053, a r t . IV, §412; 193? Sp . S e s s . , Sept. 28, P .L . 44, §1. q . §1183. R egulation of Serv ice W henever the com m ission, afte r reaso n ab le notice and h e a r in g , upon its own motion o r upon com plaint, finds that the se rv ice or facilities of any pub lic u tility a re u n reaso n ab le , u n sa fe , in ad eq u ate , insufficien t o r un reaso n ab ly d is crim inatory , o r o therw ise in v io lation of th is a c t , the comm ission sha ll d e te r mine and p re sc r ib e , by reg u la tio n or o r d e r , the reasonab le , s a fe , ad eq u a te , su ffic ien t, se rv ice o r facilities to be o b se rv ed , fu rn ish e d , en fo rced , o r em ployed in c lu d in g a ll such r e p a i r s , c h a n g e s , a lte ra tio n s , e x te n s io n s , su b s ti tu tio n s , or im provem ents in facilities as sha ll be reaso n ab ly n ecessa ry and p ro p e r for the sa fe ty , accom odation, and convenience of the p u b lic , and sha ll fix the same by its o rd e r o r re g u la tio n . 1337, May 28, P .L . 1053, a r t . IV, §413. r . §1211. M andatory system s of accounts The comm ission m ay, afte r reaso n ab le notice and h e a r in g , e s tab lish system s of accounts (includ ing cost find ing p ro c ed u re s) to be kept by pub lic u tilitie s , o r may c lassify pub lic u tilitie s and estab lish a system of accounts for each c la s s , and p re sc r ib e the m anner and form in w hich such accounts sha ll be k e p t . E very pub lic u tility sha ll e s tab lish such system s of accoun ting , and sha ll keep such accounts in the m anner and form re q u ire d by the com m ission. The account in g system of any pub lic u tility also sub ject to the ju risd ic tio n of a Federal re g u la to ry body sha ll c o rre sp o n d , as fa r as p ra c tic a b le , to the system p re sc rib ed by such Federal re g u la to ry body. P ro v id e d , That the commission may re q u ire any su ch p ub lic u tility to keep and m aintain supplem ental o r additional accounts to those re q u ire d by any su ch reg u la to ry body . 1937, May 28, P .L . 1053, a r t . V, §501. 7 a s . §1217. Inspection of books and re co rd s by com m ission. 1 The comm ission sha ll at a ll tim es have access t o , and may designate any of its em ployees to in sp ec t and ex am ine , any and all accounts , re co rd s , b o o k s , m aps, inv en to ries , a p p ra isa ls , va lua tions , o r o th er r e p o r t s , docum en ts, and m em oranda kep t by p u b lic u t i l i t ie s , o r p re p a re d or kep t for them by o thers; and the comm ission may re q u ire any p u b lic u tility to file w ith the commission copies of any o r all of su ch a cc o u n ts , r e c o r d s , b o o k s , m ap s , in v e n to r ie s , a p p ra is a ls , v a lu a tio n s , o r o th e r r e p o r t s , docum ents and m em oranda. 1937, May 28, P .L . 1053, a r t . V, §507. t . §1241. R eg istra tion of se c u ritie s to be issu e d o r assum ed. (a) U nder such reg u la tio n s as the commission may p r e s c r ib e , ev ery public u t il i ty , before it sha ll e x ec u te , cause to be au th e n tic a te d , d e liv e r , o r make any change o r ex tension in any te rm , condition , o r date of, any stock c e rtif i cate o r o th er ev idence of equ itab le in te re s t in i ts e lf , o r any b o n d , no te , t ru s t c e rtif ic a te , o r o th er ev idence of in d eb ted n ess of itse lf , any or all of w hich acts a re h e re in a fte r in cluded in the term "issu an ce of s e c u r i t ie s " , sha ll have filed with the com m ission, and sha ll have rece iv ed from the com m ission, notice of re g is tra tio n of a document to be known as a se c u ritie s certificate: P ro v id ed , T hat n e ith e r (1) the ex ecu tio n , au th en tica tio n , o r d e liv e ry of se c u ritie s to rep lace id en tica l se c u ritie s lo s t , m u tila ted , o r destro y ed w hile in the ow nersh ip of a bona fide h o ld e r- fo r -v a lu e , who p ro p e rly indem nifies the p u b lic u t i l i ty , th e re fo r , nor (2) the ex ecu tio n , au th en tica tio n , o r d e liv e ry of se c u ritie s in exchange for the su r re n d e r of iden tica l s e c u r i t ie s , so le ly for the pu rp o se of re g is te r in g or facilita ting changes in the ow nersh ip thereo f betw een bona fide h o ld e rs - fo r -v a lu e , w hich su rre n d e re d se cu ritie s a re thereupon c an ce lled , no r (3) the d e liv e ry from the tre a su ry of the p ub lic u tility of se c u ritie s p rev io u s ly re ac q u ire d from bona fide h o ld e rs -fo r-v a lu e and held a liv e , sh a ll be deem ed an issu an ce of se c u ritie s u n d e r th is subsection: And p ro v id ed f u r th e r , That the req u irem en ts of th is p a ra g ra p h sha ll not app ly to th e issu an ce of - (1) any ev idence of in d e b te d n e ss , the date of m aturity , o r w hich is at a p e rio d of le s s than one y e a r from the date of its execu tion , (2) any ev idence of in d eb ted n ess for w hich no date of m atu rity is f ix e d , bu t w hich m atures upon dem and of the h o ld e r, (3) any ev idence of in d eb ted n ess in the n a tu re of a con tract betw een a p u b lic u tility and a vendor of equipm ent w herein the pub lic u tility p rom ises to pay installm ents upon the p u rch ase p rice of equipm ent a cq u ired , and w hich is not in the form of an equipm ent t ru s t certifica te or sim ilar in stru m en t read ily m arketab le to the g en era l p u b lic . (b) U nder such reg u la tio n s as the comm ission may p re s c r ib e , ev e ry p ub lic u t i l i ty , before it sha ll assum e p rim ary o r contingent liab ility for the paym ent of any d iv idends upon any s to c k s , o r of any p rin c ip a l o r in te re s t of any in d eb ted n e s s , c rea ted or in c u rre d by any o th er p e rso n o r co rp o ra tio n , any or all of w hich acts a re h e re in a fte r in cluded in the term "assum ption of secu ritie s" , sha ll have filed w ith the com m ission, and sha ll have rece ived from the com m ission, notice of re g is tra tio n of a document to be known as a S ecu rities C ertificate: P rov id ed , how ever, T hat the req u irem en ts of th is p a ra g ra p h sha ll not app ly to an assum ption of se c u ritie s if th e comm ission sha ll have approved the acquisition of a ll of th e p ro p e rty of th e is su in g company b y the assum ing com pany, as p ro v ided in p a ra g ra p h (e) of section two h u n d red two of th is a c t. 1937, May 28, P .L . 1053, a r t . VI, §601; 1938, Sp . S e s s . , Sep t. 28, P .L . 44, §1. u . §1271. C ontracts for se rv ic e s . (a) Within th ir ty days a fte r the effective date of th is a c t , ev ery p ub lic u tility hav in g in force any contract w ith an affiliated in te re s t for the fu rn ish in g 8a to su ch p ub lic u tility of any m anagem ent, s u p e rv is o ry , p u rc h a s in g , co n stru c tion , e n g in e e r in g , f in an c in g , o r o th er s e rv ic e s , sha ll file a copy of such con tra c t , o r if o ra l, a complete statem ent of the term s and conditions th e reo f, w ith the com m ission. (b) E very pub lic u tility w hich sha ll h e rea fte r en te r in to any such con trac t , o r w hich sha ll change any su ch ex is tin g c o n tra c t, sha ll file a copy of such con tract w ith the comm ission w ith in ten days a fte r i ts execution or c h a rg e . (c) The commission sha ll have au th o rity at any time to in v estig a te ev ery such contract filed in accordance w ith th is sec tion , a n d , if after reasonab le notice and h e a r in g , it sh a ll determ ine th a t the am ounts p a id o r p ayab le th e re u n d e r a re in excess of th e reasonab le cost of fu rn ish in g the se rv ice s p ro v id ed for in the c o n tra c t, o r th a t such se rv ice s a re not reaso n ab ly n e ce ssa ry and p r o p e r , it sha ll o rd e r su ch am o u n ts, in so fa r as found e x cess iv e , to be s tr ick e n from the books of account of th e p u b lic u tility as ch arg es to fixed cap ita l, o r o p era tin g e x p en ses , as th e case may b e , and sh a ll not co n sid er such am ounts in any p ro ceed ing . In any p ro ceed in g in v o lv ing such am oun ts, the b u rd e n of p roof to show th a t su ch amounts a re not in ex cess of the reaso n ab le cost of fu rn ish in g such s e rv ic e , and th a t such se rv ice s a re reaso n ab le and p r o p e r , sha ll be on the p ub lic u t i l i ty . 1937, May 28, P .L . 1053, a r t . VII, §701. v . §1276. C ontracts in v io lation of act void E very con tract w ith an affiliated in te r e s t , made effective o r modified in v iolation of any p ro v isio n of th is a c t , o r of any reg u la tio n or o rd e r of the comm ission made u n d e r th is a c t , sh a ll be void; and any p u rc h a s e , s a le , pay ment , le a s e , loan o r exchange of any s e rv ic e , p ro p e r ty , m oney , s e c u r i ty , r ig h t , o r th in g u n d e r such c o n tra c t, o r u n d e r any contract w ith an affiliated in te re s t , the term s of w hich sha ll have been b reach ed by the affiliated in te r e s t , sh a ll be unlaw ful. 1937, May 28, P .L . 1053, a r t . VII, §706. w . §1341. A dm inistra tive au th o rity of commission; reg u la tio n s The comm ission sh a ll have g en era l adm in istra tive pow er and au thority to su p e rv ise and reg u la te a ll p u b lic u tilitie s doing b u s in e ss w ith in th is Commonwealth. The comm ission may make such re g u la tio n s , not inconsis ten t w ith the la w , as may be n ece ssa ry or p ro p e r in the ex erc ise of its pow ers or for the perform ance of i ts du ties u n d e r th is act. 1937, May 28, P .L . 1053, a r t . IX, §901. x . §1342. Commission to enforce act In addition to any pow ers he re in b efo re ex p re ss ly enum erated in th is a c t , the comm ission sha ll have fu ll pow er and a u th o rity , and it sha ll be i ts d u ty , to e n fo rc e , e x ec u te , and c a r ry o u t , by its re g u la tio n s , o r d e r s , o r o th e rw ise , all and s in g u la r the p rov isions of th is a c t , and the fu ll in ten t thereof; and sha ll have the pow er to re sc in d or modify any such reg u la tio n s or o r d e r s . The ex p ress enum eration of the pow ers of the comm ission in th is act sha ll not exclude any pow er w hich the comm ission w ould o therw ise have u n d e r any of the p ro v isio n s of th is act. 1937, May 28, P .L . 1053, a r t . IX, §902. y . §1343. Enforcem ent p ro ceed in g s by commission W henever the comm ission sha ll be of opinion that any p e rso n o r corporation in clud ing a m unicipal c o rp o ra tio n , is v io la tin g , o r is about to v io la te , any 9a p ro v isio n s of th is act; o r has d o n e , o r is about to do, any a c t , m a tte r , or th in g h e re in p ro h ib ited o r d ec lared to be unlaw ful; o r has fa ile d , om itted , •neglected, o r re fu sed , o r is about to fa il, om it, n eg lec t, o r re fu se , to perform any du ty enjo ined upon it by th is act; o r has fa iled , om itted , neg lected or re fu sed or is about to fa il, om it, n eg lec t, o r re fu se to obey any law ful req u ire m e n t, r e gu la tion , o r o rd e r made by the commission; or any final ju d g m en t, o rd e r , or decree made b y any c o u rt, th en and in ev ery case the comm ission may in stitu te in the court of common p leas of D auphin C o u n ty , in ju n c tio n , m andam us, oi( o th er a p p ro p ria te lega l p ro ceed in g s , to re s tra in such v io la tions of the p ro v is io n s of th is a c t , o r of the reg u la tio n s , o r o rd e rs of the com m ission, and to enforce obedience th ere to ; and such court of common p leas is h e reb y clothed w ith ex clusive ju r isd ic tio n th ro ughou t the Commonwealth to h ear and determ ine a ll su ch a c tio n s . No in junction bond sh a ll be re q u ire d to be filed by the com m ission. Such p e rso n s , co rpora tions , o r m unicipal corpora tions as the court may deem n e ce ssa ry o r p ro p e r to be jo in ed as p a r t i e s , in o rd e r to make its ju dgm en t, o rd e r o r w rit e ffec tiv e , may be jo ined as p a r t i e s . The final judgm ent in any such action or p ro ceed in g sha ll e ith e r d ism iss the action or p ro ceed in g , o r d irec t th a t th e w rit of m andam us or in junction issu e o r be made perm anent as p ra y ed for in th e p e tit io n , o r in such m odified or o ther form as w ill afford a p p ro p ria te re lie f . 1937, May 28, P .L . 1053, a r t . IX, §903, as am ended , 1971 Ju n e 3, P .L . No. 6, §1 (§509 (a) (115)). z. §1345. R eports b y p ub lic u tilitie s The comm ission may re q u ire any p u b lic u tility to file p e rio d ica l re p o rts at su ch tim es and in such fo rm , and of such c o n te n t, as the comm ission may p r e s c r ib e , and spec ia l re p o rts co n cern ing any m atter w hatsoever about w hich the comm ission is au tho rized to in q u ire , o r to keep its e lf in fo rm ed , o r w hich it is re q u ire d to en fo rc e . The comm ission may re q u ire any p u b lic u tility to file w ith it a copy of any re p o rt filed by such p u b lic u tility w ith any Federal departm ent o r re g u la to ry b o d y . All re p o rts sha ll be u n d e r oath or affirm ation when re q u ire d by the com m ission. 1937, May 28, P .L . 1053, a r t . IX, §905. aa . §1347. A dherence to reg u la tio n s and o rd e rs of comm ission and co u rts . E very p ub lic u t i l i ty , its o ff ice rs , a g e n ts , and em ployees , and ev ery o ther p e rso n or corpora tion sub ject to the p ro v isio n s of th is ac t, affected by or sub ject to any reg u la tio n s or o rd e rs of the com m ission , o r of any c o u r t , m ad e , i s s u e d , or en tered u n d e r the p ro v isio n s of th is ac t, sha ll o b se rv e , obey and comply w ith such reg u la tio n s o r o rd e rs , and the term s and condition th e reo f, so long as the same sha ll rem ain in fo rce . 1937, May 28, P .L . 1053, a r t . IX, §907. b b . §1348. Inspection of, and access to , facilities and re co rd s of public u tilitie s The comm ission sha ll have full pow er and a u th o r ity , e ith e r by or th ro u g h its m em bers, o r du ly au th o rized re p re se n ta tiv e s , w henever it sha ll deem it n ecessa ry io r p r o p e r , in c a rry in g out any of the p rov isio n s of th is a c t , o r its d u ties u n d e r th is a i t , to en te r upon the p rem ises , b u ild in g s , m achinery sy s te m , p la n t , and equipm ent and make any in sp ec tio n , va lu a tio n , p h y sica l exam ination , in q u iry , or in v es tig a tion of any and all p lan t and equipm ent, fac ilitie s , p ro p e rty , and p e rtin en t recordsl, boo k s, p a p e rs , m em oranda, docum ents, o r effects w h a tso ev er, of any public u t i l i ty , and to hold any h earin g for such p u rp o se s . In the perform ance of such d u tie s , the comm ission may have access to , and use any boo k s, r e c o rd s , o r docu m ents in the po ssessio n of, any d ep artm en t, b o a rd , or comm ission of the Common 10a w ealth , o r any po litica l su b d iv is io n th ereo f. 1937, May 28, P .L . 1053, a r t . IX, §908. cc . §1360. C ontracts; pow er of th e comm ission to v a ry , reform or re v ise The comm ission sha ll have pow er and au th o rity to v a ry , re fo rm , o r r e v is e , upon a fa ir , re aso n a b le , and equ itab le b a s is , any ob lig a tio n s , te rm s , o r conditions of any con tract hereto fo re o r h e rea fte r e n te red in to betw een any p ub lic u tility and any p e r s o n , c o rp o ra tio n , o r m unicipal co rpora tion w hich em brace or concern a p ub lic r i g h t , b e n e fit , p r iv ile g e , d u ty , o r f ra n c h is e , o r the g ran t th e re o f , or a re o therw ise affected o r concerned w ith th e p u b lic in te re s t and the g en era l well b e in g of the Commonwealth. W henever the comm ission sh a ll d e te rm in e , after reaso n ab le notice and h e a r in g , upon its own motion or upon com pla in t, th a t any su ch o b lig a tio n s , te rm s , o r conditions a re u n ju s t, u n re a so n a b le , in e q u itab le , o r o therw ise co n tra ry or ad v erse to the p u b lic in te re s t and the g en era l w ell b e in g of the Com monwealth, the comm ission sha ll determ ine and p re sc r ib e by fin d in g s and o r d e r , the ju s t , re aso n ab le , and equ itab le o b lig a tio n s , term s and conditions of such c o n tra c t. Such con tr a c t , as m odified b y th e o rd e r of the com m ission, sha ll become effective th ir ty days a fte r th e se rv ice of su ch o rd e r upon the p a r tie s to such c o n tra c t. 1937, May 28, P .L . 1053, a r t . IX, §920. d d . §1391. Com plaints The com m ission, o r any p e rso n , co rp o ra tio n , o r m unicipal co rporation hav ing an in te re s t in the sub jec t m a tte r , o r any p ub lic u tility c o n ce rn ed , may complain in w r i t in g , se ttin g fo rth any act o r th in g done or om itted to be done by any pub lic u tility in v io la tio n , o r claim ed v io la tio n , of any law w hich the comm ission has ju r is diction to a d m in is te r , o r of any reg u la tio n o r o rd e r of th e com m ission. Any public u tility , o r o th er p e r s o n , o r c o rp o ra tio n , sub ject to th is a c t, likew ise may complain of any re g u la tio n or o rd e r of the com m ission, w hich th e com plainant is o r has been re q u ire d by the comm ission to o b se rv e o r c a r ry into e ffec t. T he com m ission , by re g u la tio n , may p re sc r ib e the form of com plaints filed u n d e r th is se c tio n . 1937, May 28, P .L . 1053, a r t . X, §1001. ee. §1395. D ecisions by comm ission After the conclusion of the h e a r in g , the comm ission sha ll make and file its find ings and o rd e r w ith i ts o p in io n , if a n y . Its find ings sha ll be in sufficient deta il to enable the co u rt on a p p e a l, to determ ine the con tro v erted question p re sen ted by th e p ro c e e d in g , and w hether p ro p e r w eight was g iven to the ev id ence . A copy of such o r d e r , c ertified u n d e r the seal of the com m ission, shall be se rv e d by re g is te re d mail upon th e p e r s o n , corpora tion or m unicipal corporation ag a in st whom it r u n s , o r h is a tto rn e y , and notice th e reo f sha ll be g iven to the o th er p a r tie s to the p ro c e e d in g s , o r th e ir a tto rn e y . Such o rd e r sh a ll take effect and become op erativ e as d esig n ated th e re in , and sha ll continue in force e ith e r for a p e rio d w hich may b e desig n ated th e re in , or u n til changed or revoked by th e com m ission. If an o rd e r c an n o t, in the judgm ent of the com m ission, be com plied w ith w ith in the tim e d esignated th e re in , the comm ission may g ran t and p re sc r ib e su ch additional time , a s , in i ts ju d g m e n t, is reaso n ab ly n ece ssa ry to comply w ith the o r d e r , and m ay , on app lication and for good cause sh o w n , ex tend the time for com pliance fixed in its o r d e r . 1937, May 28, P .L . 1053, a r t . X, §1005. The comm ission m ay , on its own motion and w henever it may be n ece ssa ry in the perform ance of its d u t ie s , in v estig a te and exam ine the condition and m anage ment of any p u b lic u tility o r any o th er p e rso n o r corpora tion sub ject to th is act. In conducting such in v estig a tio n s the comm ission may p ro c e e d , e ith e r w ith or w ithout a h e a rin g , as it may deem b e s t, bu t it sh a ll make no o rd e r w ithout afford in g the p a r tie s affected th e re b y a h e a rin g . 1937, May 28, P .L . 1053, a r t . X, §1008 ff. §1398. Investigations B . U tilities G ross R eceip ts Tax 72 P .S . §8101 E very ra ilro a d com pany , p ipeline com pany , conduit com pany, steam boat company , canal com pany , slack w ater nav igation com pany , tran sp o rta tio n com pany, and ev ery o th er com pany, assoc ia tion , jo in t-s to ck asso c ia tio n , o r lim ited p a r tn e r s h ip , now o r h e rea fte r in co rp o ra ted or o rgan ized by or u n d e r any law of th is Commonwealth, o r now or h e rea fte r o rgan ized or in co rp o ra ted by any oth|er sta te o r by the United States o r any foreign go v ern m en t, and doing b u s in e ss in th is Commonwealth, and ev ery c o p a r tn e rs h ip , p e rso n or p e rso n s o w n in g , o p e ra t ing o r leasin g to o r from ano th er co rp o ra tio n , com pany, a sso c ia tion , jo in t-s to ck a sso c ia tio n , lim ited p a r tn e r s h ip , c o p a r tn e rs h ip , p e rso n or p e r s o n s , any r a i l ro a d , p ip e lin e , condu it, steam boat, c an a l, slack w ater n av iga tion , o r o th er device for the tran sp o rta tio n of f re ig h t , p a s s e n g e r s , b a g g a g e , o r o i l , except ta x ic a b s , motor b u se s and motor o m n ib u ses, and ev ery lim ited p a r tn e r s h ip , a sso c ia tio n , jo in t-s to ck assoc ia tion , corpora tion or company engaged in , o r h e rea fte r engaged in , the tran sp o rta tio n of f re ig h t o r oil w ith in th is S ta te , and ev ery telephone com pany, te leg rap h com pany, e x p re ss com pany, e lec tric ligh t com pany, w a te r pow er com pany , h y d ro e lec tric com pany , gas com pany, palace car company and s leep in g c a r com pany , how or h e rea fte r in co rp o ra ted or o rg an ized by or u n d e r any law of th is Commonwealth, o r now or h e rea fte r o rgan ized or in co rp o ra ted by any o th er sta te o r by the United S ta tes o r any foreign governm ent and doing b u s in e ss in th is Commonwealth, and ev ery lim ited p a r tn e rsh ip , assoc ia tion , jo in t-s to ck assoc ia tion , co p a rtn e rsh ip , p e rso n o r p e rso n s , engaged in telephone, te le g ra p h , e x p re s s , e lectric ligh t an d p o w e r, w a terp o w er, h y d ro -e le c tr ic , g a s , pa lace c a r o r sleep in g car b u sin ess in th is Commonwealth, sha ll pay the the State T re a s u re r , th ro u g h the Departm ent of R ev en u e , a tax of fo rty -fiv e m ills upon each do llar of the g ro ss re ce ip ts of the c o rp o ra tio n , company or a sso c ia tion , lim ited p a r tn e rsh ip , jo in t-s to ck asso c ia tio n , c o p a rtn e r sh ip , p e rso n or p e r s o n s , rece iv ed from p a s s e n g e r s , b a g g a g e , and fre ig h t tran sp o rte d w holly w ith in th is S ta te , from e x p re s s , palace c a r o r sleep ing car b u s in e ss done wholly w ith in th is S ta te , o r from the sa les of e lec tric en erg y o r g a s , excep t g ross re ce ip ts d e riv ed from sa les of gas to any m unicipality owned o r operated p ub lic u tility and excep t g ro ss re ce ip ts d e riv ed from the sa les o r re sa le of e lec tric en ergy or g a s , to p e rso n s , p a r tn e rsh ip s , asso c ia tio n s, corpora tions o r po litica l su b d iv isio n s sub ject to the tax im posed by th is act upon g ro ss re ce ip ts d e riv ed from such re sa le and from the tran sp o rta tio n of oil done wholly w ith in th is S ta te . The g ro ss re ce ip ts of gas com panies sha ll include the g ro ss re ce ip ts from the sa le of a rtific ia l and n a tu ra l g a s , b u t sha ll not include g ro ss re ce ip ts from the sale of liquefied petro leum g a s . The sa id tax sha ll be paid w ith in the time p re sc r ib e d by law , and for the p u rpose of a sc e rta in in g the amount of the sam e , it sha ll be the du ty of the t re a s u re r o r o ther p ro p e r officer of the said com pany , c o p a r tn e rs h ip , lim ited p a r tn e r s h ip , a sso c ia tio n , jo in t-s to ck association o r co rp o ra tio n , o r p e rso n or p e rso n s , d e riv ed from all sou rces and of g ro ss re ce ip ts from b u s in e ss done w holly w ith in th is S ta te , d u rin g the p e rio d of tw elve m onths im m ediately p reced in g Ja n u a ry 1 of each y e a r . It sh a ll be the fu r th e r du ty of the tr e a s u re r o r o th er p ro p e r officer of ev ery such co rporation or association and ev ery in d iv id u a l liab le by law to re p o rt o r pay sa id t a x , excep t m u n ic ip a litie s , to 12a tran sm it to the D epartm ent of R evenue on or before A pril 30 of each y e a r , a ten ta tiv e re p o rt in like form and m anner for each tw elve month p e rio d b eg in n in g Ja n u a ry 1, of each y e a r . The ten ta tiv e re p o rt sh a ll set fo rth (i) the amount of g ro ss re ce ip t rece iv ed in the p e rio d of tw elve m onths next p reced in g and rep o rted in th e annual re p o rt; o r (ii) the g ro ss re ce ip ts rece iv ed in the f irs t th re e m onths of the c u r re n t p e rio d of tw elve m onths; and (iii) such o th er inform ation as the D epartm ent of R evenue may r e q u ir e . Upon th e date its ten ta tiv e re p o rt is re q u ire d to be m ade , the c o rp o ra tio n , association or in d iv id u a l m aking the re p o rt sha ll compute and pay to the D ep art ment of R evenue on account of the tax due for the c u rre n t p e rio d of tw elve m onths at i ts election (i) for the y e a r 1971 not le s s th an tw en ty -n in e and o n e -th ird m ills of the do lla r amount of its g ro ss re ce ip ts re p o rte d for the e n tire p reced in g p e rio d of tw elve m onths; o r (ii) for the y e a r 1971 not le s s than one h u n d re d and seven teen and o n e -th ird m ills of the d o lla r amount of its g ro ss rece ip t rece iv ed w ith in the f irs t th ree m onths of the c u rre n t p e rio d of tw elve m o n th s. N otw ithstanding any o th er p ro v isio n in th is section to the c o n tra ry , for the y e a r 1972 and each y e a r th e re a fte r the c o rp o ra tio n , association or in d iv id u a l m aking a ten ta tive re p o rt sha ll tran sm it such re p o rt to the D epartm ent of R evenue on account of the tax due for the c u rre n t p e rio d of tw elve m onths and compute and make paym ent w ith such re p o rt p u rsu a n t to the p ro v isio n s of the act of M arch 16, 1970 (P .L . 180) . The time for filing re p o rts may be e x te n d e d , estim ated se ttlem ents may be made by the D epartm ent of R evenue if re p o rts a re not f i le d , and the pen altie s for fa il ing to file re p o rts and pay the tax sha ll be as p re sc r ib e d by the laws defin ing the pow ers and d u ties of the D epartm ent of R ev en u e . In any case w here the w orks of ahy c o rp o ra tio n , com pany , c o p a r tn e rs h ip , a sso c ia tio n , jo in t-s to ck asso c ia tio n , lim ited p a r tn e r s h ip , p e rso n or p e r s o n s , the taxes im posed by th is section sha ll be ap p o r tioned betw een the co rpora tions , co m pan ies, c o p a r tn e rs h ip s , a sso c ia tio n s , jo in t- stock a sso c ia tio n s , lim ited p a r tn e r s h ip s , p e rso n or p e rso n s in accordance with the term s of th e ir re sp ec tiv e leases o r ag reem en t, bu t for the paym ent of the said tax es th e Commonwealth sh a ll f irs t look to the c o rp o ra tio n , com pany , c o p a rtn e r sh ip , a sso c ia tion , jo in t-s to ck asso c ia tio n , lim ited p a r tn e r s h ip , p e rso n or p e rso n s o p era tin g the w o rk s , and upon paym ent by the sa id com pany , c o rp o ra tio n , co p a r tn e rsh ip , assoc ia tion , jo in t-s to ck asso c ia tio n , lim ited p a r tn e r s h ip , p e rso n or p e rso n s of a tax upon the r e c e ip ts , as h e re in p ro v id e d , d e riv ed from the o p e ra tion th e reo f, no o th er c o rp o ra tio n , com pany , c o p a r tn e rs h ip , a sso c ia tio n , jo in t- stock asso c ia tio n , lim ited p a r tn e r s h ip , p e rso n or p e rso n s sha ll be held liab le undej- th is section for any tax upon the p ro p o rtio n of sa id re ce ip ts rece iv ed by said co rp o ra tio n , com pany , c o p a r tn e rs h ip , a sso c ia tio n , jo in t-s to ck asso c ia tion , lim ited p a r tn e rsh ip , p e rso n o r p e rso n s for the use of sa id w o rk s . T h is a rtic le sha ll be co n stru ed to app ly to m u n ic ip a litie s , and to impose a tax upon the g ro ss re ce ip ts d e riv ed from any m unicipality owned or o p erated public u tility o r from any p ub lic u tility se rv ice fu rn ish e d by any m u n ic ip a lity , except that g ro ss re ce ip ts sha ll be exem pt from the ta x , to the ex ten t that such g ro ss re ce ip ts a re d e riv ed from b u s in e ss done in s id e the lim its of the m u n ic ip a lity , ow ning or op eratin g the p u b lic u tility o r fu rn ish in g the p u b lic u tility se rv ice . 1971, M arch 4, P .L . - , No. 2, a r t . X I, §1101, as am ended 1971, Aug. 31, P .L . - , No. 93, §7. C . Pa , P .U .C . - T ariff R egulations a . Section II. PUBLIC NOTICE OF TARIFF CHANGES 1. U nless the Commission o therw ise o rd e rs , no p ub lic u tility to w hich these ru le s app ly sha ll make any change in any ex is tin g and duly e stab lish ed ta riff except a fte r six ty (60) d ay s ' notice to the p u b lic . 13a 2. Each notice sh a ll p la in ly sta te the changes p ro p o sed in the ta riff then in fo rc e , and the date on w hich the changes w ill become e ffec tiv e . (See Section I I I ) . b . Section VIII. DISCOUNT FOR PROMPT PAYMENT AND PENALTIES FOR DELAYER! PAYMENT OF BILLS E very p ub lic u tility th a t im poses p en altie s upon its custom ers for fa ilu re to pay b ills p ro m p tly , o r allows its custom ers d iscoun ts for p rom pt paym ent of b i l l s , sh a ll p ro v id e in its posted and filed ta riffs a ru le se ttin g forth c learly the exact c ircum stances an d conditions in w hich th e pen altie s a re im posed o r d is counts are. allow ed. The ta r if f sh a ll also in d ica te c learly w h e th e r , if b ills a re paid by m ail, the date of the postm ark w ill be co n sid ered the date of p ay m en t. D . P a . P .U .C . - E lectric R egulations Rule 14 - ADJUSTMENT OF BILLS FOR AVERAGE METER ERROR D . ACCESS TO METERS - The p u b lic u tility sh a ll at all reaso n ab le tim es have access to m e te rs , se rv ice lin es and o th er p ro p e rty owned by it on cu sto m er's p re m ise s , for p u rp o ses of m aintenance and o p eratio n . N eglect o r re fu sa l on the p a r t of custom ers to p ro v id e reaasonab le access to th e ir p rem ises for the above p u rp o ses sh a ll be deem ed to be suffic ient cause for d iscontinuance of s e rv ic e . E . M etropolitan Edison Company E lectric T ariff E lectric Pa. P .U .C . No. 41 Rule 15. Cause for d iscontinuance of serv ice : Company re se rv e s the r ig h t to d iscontinue its s e rv ice on reaso n ab le notice and to rem ove its equipm ent in'Cfise of nonpaym ent of b ill o r violation of the ' P enn sy lv an ia Public U tility Com m ission's o r C om pany's R ules and R eg u la tio n s, o r , w ithout n o tic e , for a b u s e , f r a u d , o r tam pering w ith the co n n ec tio n s, m eters o r o th er equipm ent of Com pany. F a ilu re by Company to ex erc ise th is r ig h t sh a ll not be deem ed a w aiver th ereo f. Should the Com pany's se rv ice b e term inated for any cause a fo resa id , the minimum ch arg e for the u n ex p ired p o rtion of the term sh a ll become due and p ay able im m ediately , p ro v id e d , h o w ev er, th a t if sa tisfac to ry arran g em en ts a re sub seq u en tly made by Custom er for reconnection of the se rv ice (in w hich e v e n t , a reconnection ch arg e of not le s s than $1.00 m ust be p a id ) the immediate paym ent of the minimum ch arg e for the u n ex p ired portion of the con tract term may be w aived or m odified as the c ircum stances ind ica te would be ju s t and re a so n a b le . Company may re fu se its se rv ice to , o r rem ove its se rv ice from , any in sta lla tion w h ic h , in the judgm ent of Com pany, w ill in ju rio u sly affect the operation of Com pany's system or i ts se rv ice to o th er C u sto m ers. Issued A pril 30, 1971. Effective Ju n e 30, 1971 F. K ansas S ta tu tes Annotated K .S .A . §66-101 Pow er, au th o rity and ju r isd ic tio n . The sta te corpora tion commission is g iven fu ll p o w e r, au th o rity and ju risd ic tio n to su p e rv ise and contro l the 14a p ub lic u t i l i t ie s , inc lu d in g rad io common c a r r i e r s , and a ll common c a r r i e r s , as h e re in a fte r defin ed , doing b u s in e ss in the sta te of K ansas, and is em pow ered to do a ll th in g s n ecessa ry and convenient for th e ex erc ise of su ch p o w e r, au tho rity and j u risd ic tio n . G. Federal S tatutes a . 42 U .S .C . §1983 Civil action for d ep riva tion of r ig h ts E very p e rso n who, u n d e r color of any s ta tu te , o rd in an ce , re g u la tio n , custom or u sa g e , of any State or T e r r i to ry , su b je c ts , o r causes to be su b jec ted , any c itizen of the United S tates o r o th er p e rso n w ith in the ju risd ic tio n th ereo f to th e dep riv a tio n of any r i g h ts , p r iv i le g e s , o r im m unities secu red by the Con stitu tion and la w s , sha ll be liab le to the p a rty in ju re d in an action at law , su it in e q u ity , o r o th er p ro p e r p ro ceed in g for r e d r e s s . b . 28 U .S .C . 81343 Civil r ig h ts and e lective fran ch ise The d is tr ic t co u rts sha ll have o rig in a l ju risd ic tio n of any c iv il action au thorized by law to be commenced by any person : (1) To reco v er dam ages for in ju ry to h is p e rso n or p ro p e r ty , o r because of the d ep riva tion of any r ig h t o r p riv ile g e of a c itizen of the U nited S ta tes, by any act done in fu rth e ran ce of any co n sp iracy m entioned in section 1985 of T itle 42; (2) To reco v e r dam ages from any p e rso n who fails to p rev en t o r to aid in p re v en tin g any w rongs m entioned in section 1985 of T itle 42 w hich he had know ledge w ere about to occur and pow er to p reven t; (3) To re d re s s th e d e p riv a tio n , u n d e r color of any S tate law , s ta tu te , o rd in a n c e , re g u la tio n , custom o r u sag e , of any r ig h t, p riv ile g e or immunity secu red by th e C onstitution of the United S tates o r by any Act of C ongress p ro v id in g for equal r ig h ts of c itizen s o r of all p e rso n s w ith in the ju risd ic tio n of the United S ta te s . (4) To reco v e r dam ages or to sec u re equ itab le o r o th er re lie f u n d e r any Act of C ongress p ro v id in g for the p ro tec tion of c iv il r i g h ts , includ ing the r ig h t to v o te . Ju n e 25, 1948, c . 646, 62 S ta t. 932; Sep t. 3, 1954, c . 1263, §42, 68 Stat. 1241; Sept. 9, 1957, P ub . L. 85-315, P a rt III, §121, 71 S ta t. 637. H. United S tates C onstitution F ourteen th Amendment Section 1 Due P rocess C lause . • • nor sha ll any sta te d ep riv e any p e rso n of l if e , lib e rty o r p ro p e rty w ithout due p ro cess of law . . . lb APPENDIX B Man, S ev en ty -o n e , F reezes to Death A fter U tility S hu ts Off G as, United P re ss In te rn a tio n a l, ap p earin g in Boston G lobe, (Feb. 9, 1974), p . 17 Man, 71, frernes to death after utility cuts off gas United Press International MILWAUKEE — Every body is sorry 'about what happened to H a r o l d Radtke. The Wisconsin Public Service Corp. (PSC) turn ed off the gas at Radtke’* been* in Peshtigo Jan. 28 igacause he had not paid his gas bill for three months. The 71-year-old bache lor’s frozen body was found Tuesday, lying face up on the floor of his home, dressed in five shirts. There wen* several blankets m his sleeping couch. Radtke had apparently been trying; to get warmth from a; vacuum cleaner motor «»$ an electric heating piste, The temperature outsujtei was 1 degree above zero. Inside it was 20. Pans ot water on the stov® were, frozen. So were the toilet and the kitchen sink. A spokesman for f?»e PSC said yesterday it was “a horrible tragedy.” Bui} he denied the company had done anything wrong. The trouble was that Radtke had not paid a $138t gas bill in three months, He had been warned and had indicated he would pay. But he didn’t. The last time Radtke’s heat was turned off in June, his brother, Wilbert, of Lewiston, Idaho, psad* the bill. The brother says he told the PSC if thers was ever any trouble agftirt to let him know. The PSC said it has no record of that. 2b E ld erly Couple Found Frozen in S y racu se Home, T he New York T im es, Dec. 26, 1973. , T H E N E W Y O R K T I M E S , W E D N E S D A Y , D E C E M B E R 16, 1 ) 7 3 __________ _ Elderly Couple Found Frozen in Syracuse Home1 SCHENBCTADY, N.Y., Dec. ©flm fom Dhcoo, rs 25 (UP1) — A man and his wife,. both in their 90’s were found dead yesterday,, appar ently frozen to death in their unheated home. Basil Heise, a serviceman on nonpayment of holiday leave, discovered the i old $202 bill, bodies of Ms grandparents The elderly coupel refused to Utility Had Cut Off Power for Nonpayment of Bill pany several times about their bill, the Bakers refused to dis cuss it, a* power' company spokesman said. .. Last week, the telephone ---------------1 company cut off service,, aisoi five-mn*th-■ or ^ p a y m e n t of bills, ai nve-mcutft- |spoke2 rir<n S5id> . f when he went - to their home to take them, to a Christmas Eve dinner. The couple - — Frank Baker, 93 years old, and allow a utility man into the home to shut off the gas, and it was still orf at the ti~ ;• of their deaths, he said. The utility spokesman said the home would have made” any gas furnace inoperative, but would not have .-lfee :1 the use cf a gas cooking s tov \ which could have provided some 1. ;.,t. The utilities wore cut off six- his wife, Katherine, 91 — were (turning off the electricity to found huddled together on their • - - • * ■ living room floor by Mr. Heise, who called the police. A deputy county medical examiner, Dr. John Shields, said The utilities were cut off six the couple had apparently been months ego, he said, but were dead for about two days.- He|reinstated when a church paid tentatively listed death as .due ' **’ ” * " ........ to natural causes brought on by exposure, but said he would have an official ruling follow- A spokesman for the Niagara Mohawk Power Corporation, which provides the area with: electricity and natural gas, said j power to the home had been turned off last Thursday for h. If the delinquent bill. Contacted ' y the power com-