Opinion

R.C. Culbertson v. PA PUC

Court
Commonwealth Court of Pennsylvania
Filed
Sep 30, 2024
Status
Unpublished
On the bench
McCullough
Cited by
0 cases
Authority
More cited than 30.7%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard C. Culbertson, :

Petitioner :

:

v. : No. 90 C.D. 2023

:

Pennsylvania Public Utility : Submitted: August 9, 2024

Commission , :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: September 30, 2024

Richard C. Culbertson (Culbertson), proceeding pro se, petitions for

review of the December 8, 2022 order of the Pennsylvania Public Utility Commission

(Commission). Relevant here, the Commission’s order adopted the Recommended

Decision of Deputy Chief Administrative Law Judge Christopher P. Bell and

Administrative Law Judge John Coogan (ALJs), thereby (1) approving without

modification two proposed settlements with regard to Columbia Gas of Pennsylvania,

Inc.’s (Columbia) proposed general rate increase for 2022, (2) denying Culbertson’s

exceptions to the ALJs’ Recommended Decision, and (3) dismissing Culbertson’s

complaint against Columbia. In effect, the Commission’s order reduced Columbia’s

proposed 2022 base rate revenue increase from $82.2 million to $44.5 million.

In this Court, Culbertson argues that (1) the Commission did not conduct

an adequate investigation into Columbia’s proposed rate increase; (2) he was denied

due process because he did not participate in settlement negotiations; and (3) the rates

established in the Commission-approved settlements are not just, reasonable, or in

furtherance of the public interest. After careful review, we affirm.1

I. BACKGROUND AND PROCEDURAL HISTORY

“Columbia is a public utility and natural gas distribution company which

delivers natural gas service to approximately 440,000 residential, commercial, and

industrial customers in portions of [26] counties in Pennsylvania, primarily in the

western half of [Pennsylvania] and in parts of Northwest, Southern, and Central

Pennsylvania.”2 (Commission Op., at 5; Supplemental Reproduced Record (S.R.)3 at

0493a.) On March 18, 2022, Columbia filed Supplement No. 337 to its tariff to become

effective for services rendered on or after May 17, 2022. Supplement No. 337

contained proposed increases in Columbia’s base distribution rates, which increases

1

This matter is not the first in which Culbertson has challenged a base rate increase proposed

by Columbia. Culbertson challenged Columbia’s proposed rate increase for 2021, which also

resolved by settlement. See Culbertson v. Pennsylvania Public Utility Commission (Pa. Cmwlth., No.

152 C.D. 2022, filed August 17, 2023) (Culbertson I). In Culbertson I, Culbertson lodged challenges

to Columbia’s base rates and the Commission’s investigative process. Specifically, Culbertson

asserted that (1) the Commission should have audited Columbia in accordance with various auditing

and accounting standards; (2) the Commission violated Culbertson’s rights to due process; and (3)

the Commission’s approval of the parties’ “black box” settlement was illegal. See Culbertson I, slip

op. at 5-7, 8-18. There, as here, we rejected Culbertson’s arguments in total and affirmed the

Commission’s approval of the settlement. Id. at 18.

2

There is no dispute that Columbia qualifies as both a “public utility” and “natural gas

distribution company” pursuant to Sections 102 and 2202 of the Public Utility Code (Code), 66

Pa.C.S. §§ 102, 2202.

3

We note that neither Culbertson’s Reproduced Record nor the Commission’s Supplemental

Reproduced Record complies with Pennsylvania Rule of Appellate Procedure 2173 in that the

Reproduced Record is unpaginated and the Supplemental Reproduced Record is paginated using

Arabic numerals each followed by a lowercase “a” instead of “b.” See Pa.R.A.P. 2173. We

nevertheless refer to both records herein as they have been paginated by the parties.

2

were designed to generate an additional $82.2 million in revenue. Id. at 2; S.R. at

0490a.

Thereafter, the Commission’s Bureau of Investigation and Enforcement

(I&E) entered an appearance, and the following parties filed formal complaints

challenging the proposed rate increase: the Office of Small Business Advocate

(OSBA),4 the Office of Consumer Advocate (OCA),5 the Pennsylvania State University

(PSU), Columbia Industrial Intervenors (CII), Jose A. Serrano (Serrano), Constance

Wile (Wile), and Culbertson. Several parties sought and were granted intervention,

including the Pennsylvania Weatherization Providers Task Force (Task Force), the

Retail Energy Supply Association, Shipley Choice, LLC and NRG Energy, Inc.

(collectively, RESA/NGS Parties), the Coalition for Affordable Utility Services and

Energy Efficiency in Pennsylvania (CAUSE-PA), and the Natural Resources Defense

Council (NRDC). Id. at 2-3; S.R. at 0490a-91a.

On April 14, 2022, the Commission entered an order (1) instituting an

investigation of the lawfulness, justness, and reasonableness of both the proposed new

rate and Columbia’s existing rates, rules, and regulations; (2) suspending the rate

4

Sections 3, 5, and 7 of the Small Business Advocate Act, Act of December 21, 1988, P.L.

1871, 73 P.S. §§ 399.41-399.50b (SBAA), authorize the OSBA, which is an office within the

Department of Community and Economic Development, to intervene and represent the interests of

small business owners in proceedings before the Commission. 73 P.S. §§ 399.43, 399.45, 399.47.

5

The OCA is authorized to intervene in Commission proceedings to represent the interests of

consumers. See Sections 902-A, 904-A, and 905-A of The Administrative Code of 1929, Act of April

9, 1929, P.L. 177, as amended, added by the Act of July 9, 1976, P.L. 903, 71 P.S. §§ 309-2, 309-4,

309-5.

3

increase pursuant to Section 1308(d) of Code, 66 Pa.C.S. § 1308(d); 6 and (3) assigning

the matter to the Office of Administrative Law Judge7 for hearings and a recommended

decision. Id. at 2; S.R. at 0490a. On June 14, 2022, Culbertson filed a motion for

special investigation into Columbia’s proposed rates and the quality of the work of its

contractors. Id. at 7; S.R. at 0297a. The ALJs denied the motion on June 24, 2022. Id.

The parties thereafter conducted extensive pre-hearing discovery. Id. at 0297a-99a.

The ALJs conducted telephonic input hearings on May 31, 2022 and June 1, 2022, and

thereafter conducted an evidentiary hearing on August 3, 2022. (Commission Op., at

3; S.R. at 0491a.) Other than a single Columbia witness, all other witnesses were

excused from appearing live at the evidentiary hearing because no parties requested

cross-examination. All proffered testimony and exhibits were admitted into evidence

without objection. Id. at 3-4; S.R. at 0491a-92a. Culbertson did not present any

evidence. OSBA, Culbertson, I&E, Columbia, and PSU thereafter submitted principal

and reply briefs.

On September 2, 2022, Columbia, I&E, the OCA, the OSBA, PSU, CII,

the RESA/NGS Parties, CAUSE-PA, and the Task Force (collectively, Joint

Petitioners) filed a Joint Petition for Partial Settlement (Partial Settlement), which

sought approval of a settlement among the Joint Petitioners that would resolve all

outstanding issues except revenue allocation and rate design. The same day, Columbia,

I&E, the OCA, PSU, CII, CAUSE-PA, and the Task Force (collectively, Non-

Unanimous Petitioners) filed a Joint Petition for Non-Unanimous Settlement

6

A proposed general rate increase is automatically suspended, for a period not to exceed seven

months after the date on which it otherwise would become effective, pending final decision by the

Commission regarding the rate’s lawfulness. 66 Pa.C.S. § 1308(d).

7

The matter first was assigned to Deputy Chief ALJ Christopher P. Pell. On May 2, 2022,

ALJ John Coogan was assigned to co-preside. (S.R. at 0293a-94a.)

4

Regarding Revenue Allocation and Rate Design (Non-Unanimous Settlement), which

proposed a settlement regarding revenue allocation and rate design. Together, the

Partial Settlement and Non-Unanimous Settlement (Settlements) would provide for

increased annual base rate revenues to Columbia of $44.5 million, and the total average

monthly bill of a residential customer using 70 therms8 of gas per month would increase

from $123.24 to $128.96. (Commission Op., at 6; S.R. at 0494a.) The OSBA filed

objections to the Non-Unanimous Settlement, and Culbertson filed objections to the

Settlements.

The ALJs issued the Recommended Decision on October 4, 2022, in

which they concluded that the Settlements were consistent with the Code, supported

by substantial evidence, and in furtherance of the public interest. (S.R. at 0408a.) The

ALJs also thoroughly addressed and rejected in total Culbertson’s objections.

Culbertson had argued in opposition to the Settlements that (1) Columbia’s accelerated

pipeline replacements were unreasonable and wasteful; (2) the Commission’s process

for investigation into the reasonableness of Columbia’s proposed rate increase is

flawed for multiple reasons, including that it does not follow certain financial and

auditing guidelines; (3) Columbia did not explain why its base rates are higher than

those of other natural gas producers; (4) the Commission’s approval of “black-box”

settlements is improper; and (5) he was denied due process during the proceedings

before the ALJs. (S.R. at 0351a-56a; 0396a-97a.)

The ALJs first concluded that the Settlements were supported by ample

evidence in the record and that Culbertson presented no evidence or analysis supporting

his contentions that the rates are unreasonable. The ALJs further rejected Culbertson’s

arguments that the Commission’s investigation into the proposed rates was inadequate,

8

“Therm” is a term used in the natural gas industry to describe the energy output of a single

unit of gas. Culbertson I, slip op. at 4 n.8.

5

citing the testimony of multiple expert witnesses, four public input hearings, and the

extensive evidentiary record developed before the ALJs to support the finding that the

investigation was adequate. Id. at 0404a-05a.9 Next, the ALJs rejected Culbertson’s

arguments regarding the comparable base rates of other natural gas producers because

Culbertson presented no evidence whatsoever to support his arguments, and any

reference by Culbertson to evidence not in the record would not be considered. Id. at

0405a. Lastly, the ALJs concluded that Columbia met its burden to establish that its

proposed rate increase was supported by substantial evidence with regard to both its

accelerated pipeline replacement program and the safety concerns raised by

Culbertson, who, again, did not present any evidence to support his claims. Id. at

0406a. The ALJs accordingly recommended that Culbertson’s complaint be dismissed

in its entirety. Id.

On October 14, 2022, Culbertson filed 16 exceptions10 to the

Recommended Decision, which, fairly summarized, contended that (1) the Settlements

were not in compliance with the Code and were not in furtherance of the public interest

because the Commission’s investigation of the proposed rate increase did not comply

with certain provisions of the Code of Federal Regulations, the Government

Accountability Office (GAO) Yellow Book, and GAO Green Book (id. at 0418a-430a);

(2) his complaint should not be dismissed (id. at 0432a-35a); (3) I&E did not

adequately perform its prosecutorial function (id. at 0435a-36a); (4) he was wrongfully

excluded from settlement negotiations and that the ALJs should have imposed rules

9

The ALJs also noted that Culbertson’s arguments were similar to those made in Culbertson

I, which, in pertinent part, were rejected by the ALJ, the Commission, and this Court. Id. at 0405a.

10

Although Culbertson’s exceptions are numbered as Exceptions 1 through 14, they include

two exceptions designated as “Exception 11” and two designated as “Exception 12.” (S.R. at 0441a-

44a.)

6

requiring his participation in settlement discussions (id. at 0436a); (5) the revenue

allocations initially proposed by Columbia ($82.2 million) and agreed upon in the

Settlements ($44.5 million) are incorrect (id. at 0436a-37a); (6) the costs associated

with Columbia’s accelerated pipeline replacement program are not just and reasonable

(id. at 0437a-38a); (7) he was prevented from introducing any evidence to support his

claims because of the Commission’s inadequate investigation (id. at 0438a-39a); (8)

the ALJs did not acknowledge or consider opposition letters submitted by the public

(id. at 0439a); (9) “black-box” settlements are illegal in Pennsylvania and should not

be permitted in Commission proceedings (id. at 0440a-442a); (10) I&E did not utilize

the GAO Yellow Book and other generally accepted auditing standards to evaluate

Columbia’s necessary revenue (id. at 0441a); (11) certain accounting methods utilized

in reaching the Settlements were inappropriate (id. at 0442a-43a); (12) the

effectiveness of the OCA, OSBA, and I&E is negatively affected by the Commission

and the ALJs (id. at 0443a-44a); (13) the extensive discovery conducted by the parties

was inadequate because it did not comply with the GAO Yellow Book (id. at 0444a);

(14) an adequate financial audit of Columbia has not been performed (id. at 0444a);

and (15) safety issues persist within Columbia’s operations, and the witnesses

presented by Columbia and I&E were incorrect on this issue (id. at 0445a-47a.). The

OSBA also filed exceptions.

On December 8, 2022, the Commission entered an order denying

Culbertson’s and the OSBA’s exceptions, adopting the ALJs’ Recommended Decision,

and approving the Settlements without modification.11 Culbertson filed his Petition for

Review (PFR) in this Court on January 5, 2023.

11

The Commission also granted Columbia’s Motion to Strike Culbertson’s “Motion to the

Commission to Expedite Determinations Regarding the Pipeline Safety Including the Regulatory

(Footnote continued on next page…)

7

II. QUESTIONS PRESENTED

Culbertson presents multiple issues in both his PFR and brief, which we

can fairly combine and group into the following three overarching questions: (1)

whether the Commission conducted a legally adequate investigation into Columbia’s

proposed rate increase; (2) whether the Commission’s settlement process deprived

Culbertson of due process; and (3) whether the rates contained in the Commission-

approved “black box” settlements are just, reasonable, and in furtherance of the public

interest.12

III. DISCUSSION

Our review of an order of the Commission is limited to determining

whether the Commission violated constitutional rights, erred as a matter of law or

procedure, or made findings unsupported by substantial evidence in the record. 2

Pa.C.S. § 704; Popowsky v. Pennsylvania Public Utility Commission, 910 A.2d 38, 48

(Pa. 2006) (Popowsky II). In conducting such review, we defer to the Commission’s

interpretation of both the Code and its own regulations unless such interpretation is

clearly erroneous. Popowsky v. Pennsylvania Public Utility Commission, 706 A.2d

1197, 1203 (Pa. 1997) (Popowsky I). We will “neither substitute [our] judgment for

that of the [Commission] when substantial evidence supports the [Commission]’s

decision on a matter within the [Commission]’s expertise, nor should [we] indulge in

the process of weighing evidence and resolving conflicting testimony.” Lehigh Valley

Required Installation, Maintenance, and Use of Utility-Owned Curb Valves as Connected to Service

Lines.” (S.R. at 0493a.) Neither of those motions is at issue in this appeal.

12

These three overarching questions also fairly encompass those presented by the

Commission and Columbia in their briefs. See Commission Br., at 3; Columbia Br., at 5.

8

Transportation Services, Inc. v. Pennsylvania Public Utility Commission, 56 A.3d 49,

56 (Pa. Cmwlth. 2012) (internal quotations, original bracketing, and citation omitted).

The Code requires that rates made or received by a public utility be just

and reasonable and “in conformity with regulations or orders of the [C]ommission.”

66 Pa.C.S. § 1301(a). If a public utility seeks to increase its rates, it first must provide

the Commission with 60 days’ notice of the proposed increase. See 66 Pa.C.S. §

1308(a). Then, upon the filing of a third-party complaint or its own motion, the

Commission may conduct a hearing to determine the lawfulness of the proposed new

rate. 66 Pa.C.S. § 1308(b). Where a public utility requests a general rate increase, the

Commission also must “promptly enter into an investigation and analysis” of the

proposed rate. 66 Pa.C.S. § 1308(d).

If the Commission determines the proposed rates are “unjust or

unreasonable, or in anywise in violation of the law,” the Commission must “determine

the just and reasonable rate to be charged or applied by the public utility for the service

in question, and shall fix the same by order to be served upon the public utility.” 66

Pa.C.S. § 1308(c). In general rate cases, following an investigation and hearing, the

Commission must enter “a final decision and order, setting forth its reasons therefor,

granting or denying, in whole or in part, the general rate increase requested.” Id.

At a hearing before the Commission, the proponent of an order carries the

burden of proof. 66 Pa.C.S. § 332(a). That party “must prove its case by a

preponderance of the evidence, which is evidence more convincing than that offered

by the other parties.” Transource Pennsylvania, LLC v. Pennsylvania Public Utility

Commission, 278 A.3d 942, 955 (Pa. Cmwlth. 2022) (citing Se-Ling Hosiery, Inc. v.

Margulies, 70 A.2d 854, 855-56 (Pa. 1950)). The proponent’s burden of proof includes

a burden of production and a burden of persuasion. Transource Pennsylvania, 278 A.3d

9

at 955 (citation omitted). “[T]he burden of persuasion never leaves the party on whom

it is originally cast, but the burden of production may shift during the course of the

proceedings.” Riedel v. County of Allegheny, 633 A.2d 1325, 1328 n.11 (Pa. Cmwlth.

1993). “In determining the reasonableness of any discretionary agency action,

‘appellate courts accord deference to agencies and reverse agency determinations only

if they were made in bad faith or if they constituted a manifest or flagrant abuse of

discretion or a purely arbitrary execution of the agency’s duties or functions.’” Bucks

County Services, Inc. v. Philadelphia Parking Authority, 195 A.3d 218, 237 (Pa. 2018)

(quoting Rohrbaugh v. Pennsylvania Public Utility Commission, 727 A.2d 1080, 1095

(Pa. 1999)).

A. The Commission’s Investigation

Culbertson first argues, in quite jumbled fashion, that the Commission’s

investigation of Columbia’s proposed rate increase was inadequate because the

Commission did not conduct an internal audit of Columbia in accordance with various

federal laws, regulations, generally accepted government auditing standards

(GAGAS), the GAO Yellow Book and Green Book, and article VIII, section 10 of the

Pennsylvania Constitution.13 (Culbertson Br., at 30-38, 44-45.) We addressed these

very arguments in Culbertson I, where we concluded that Culbertson provided no

authority that any of these standards or authorities applied in Commission rate

proceedings. Culbertson I, slip op. at 10-11. We also concluded that Columbia is not

an entity funded or aided financially by the Commonwealth and therefore is not subject

to audits under article VIII, section 10. Id. Culbertson likewise here has not included

13

Article VIII, section 10 of the Pennsylvania Constitution generally provides that entities

funded or aided financially by the Commonwealth shall be subject to audits performed in accordance

with generally accepted accounting principles. Pa. Const. art. VIII, § 10.

10

any Pennsylvania authority indicating that the Commission was obligated to conduct

such an audit, and we again reject his arguments accordingly.

Culbertson next argues that the Commission erred in failing to appoint an

“independent and competent investigator” to conduct investigation of Columbia’s

proposed rate increase and generally challenges the impartiality of the Commission’s

investigation. (Culbertson Br., at 39-44.) Once again, Culbertson’s arguments on this

point are wandering and nearly unintelligible. Although Culbertson offers extensive

personal opinion regarding how the Commission ought to conduct its base rate increase

investigations, he has not identified any governing provisions of the Code or the

Commission’s regulations that were violated or any portions of the record indicating

bias or partiality. The Commission concluded in this regard:

We agree with the ALJs that this filing has been subject to

an extensive and detailed investigation, which includes

I&E’s active participation in this proceeding. We agree with

Columbia that I&E thoroughly examined Columbia’s filing,

as evidence by the testimony from I&E’s witnesses regarding

operating and maintenance expenses, energy efficiency, rate

of return, cost of service, revenue allocation, and pipeline

replacement. . . . [N]either the Code nor the Commission’s

[r]egulations require I&E, or any other [p]arty, to conduct an

audit as part of [a] rate case . . . .

Additionally, . . . [i]n the context of a general rate increase

case such as this one, the Commission is aided by the active

participation of entities representing various subgroups of

the entire public. A number of these active participants have

a statutorily imposed obligation to provide this

representation, while others are self-created entities choosing

to represent a delineated subgroup. Taken as a whole, these

active participants cover the entire spectrum of the public

whose welfare is to be protected.

The OCA is statutorily charged with the duty of representing

the interests of consumers . . . . The OSBA is statutorily

charged with the duty of representing the interests of small

11

business consumers . . . . I&E is statutorily charged with

taking appropriate enforcement actions, including rate

proceedings [to ensure compliance].

One could argue that these three entities alone constitute

representation of the entire public, whose welfare is to be

protected.

We also find no merit in [ ] Culbertson’s arguments that

suggest [the OCA, OSBA, and I&E (Statutory Parties)] were

not properly fulfilling their duties or that the ALJs were not

conducting the proceeding in an impartial manner. There is

nothing in the record to support [ ] Culbertson’s assertions.

As Columbia states, the Statutory Parties presented extensive

testimony and exhibits from various witnesses.

Additionally, [ ] Culbertson does not refer to any evidence of

an actual or apparent impartiality or unprofessional conduct

of the proceeding by the ALJs that would be contrary to the

requirements in the Code or in [its] [r]egulations.

(S.R. at 0523a-24a.) We agree with the Commission’s conclusions. Other than

speculating about the standards that should apply in Commission rate cases, Culbertson

has not identified any violations of the standards that in fact do apply. His arguments

therefore are without merit. See also Culbertson I, slip op. at 11-15.

B. The Settlement Process

Culbertson next argues that the “black-box” Settlements must be set aside

because he was not permitted to participate in the discussions and negotiations that

resulted in the Settlements in violation of (1) 52 Pa. Code § 69.401, (2) his right to due

process, and (3) his right to access the courts pursuant to article I, section 11 of the

Pennsylvania Constitution, Pa. Const. art. I, § 11. (Culbertson Br., at 45-50.)

We have summarized as follows the requirements of due process before

an administrative tribunal:

There is no question that due process is required in all

hearings before administrative agencies of the

Commonwealth. Due process is a concept incapable of exact

12

definition. Rather, it is a flexible notion which calls for such

procedural safeguards as a particular situation demands to

ensure fundamental fairness to a potentially aggrieved

litigant. However, a fair and impartial tribunal in the first

instance is a cornerstone of our notion of due process.

School District of Philadelphia v. Pennsylvania Milk Marketing Board, 683 A.2d 972,

978 (Pa. Cmwlth. 1996) (internal citations and quotations omitted). The essential

elements of due process in administrative proceedings, as elsewhere, are notice and an

opportunity to be heard. Groch v. Unemployment Compensation Board of Review, 472

A.2d 286, 287-88 (Pa. Cmwlth. 1984). The Commission resolved Culbertson’s due

process challenge as follows:

[W]e find that [] Culbertson’s due process rights regarding

the Settlements were protected in this proceeding. Although

it appears that Columbia and [] Culbertson were unable to

resolve his issues informally, [] Culbertson was provided an

opportunity to review, comment, and object to the terms of

the Settlements, which he did. On September 2, 2022, the

ALJs issued a letter to the [p]arties informing them of [the]

two proposed [S]ettlements in the case and how to submit

comments or objections regarding those [S]ettlements to the

ALJs for consideration. . . . Culbertson filed an [o]bjection

to the Settlements. [] Culbertson offers no evidence to

support his claim that he was inappropriately excluded from

settlement discussions.

(S.R. at 0614a.)

Culbertson does not argue that he was in any way precluded from filing a

complaint, obtaining party status, filing briefs, engaging in extensive discovery,

presenting evidence, and otherwise participating in the evidentiary hearing before the

ALJs, lodging objections and exceptions to the Settlements, or in any other way

engaging fully in the Commission proceedings. The record from the Commission

amply establishes that he did all of these things. Instead, Culbertson argues that he was

entitled to participate in settlement negotiations. We disagree.

13

First, Culbertson did not present any evidence before the ALJs or the

Commission, in the form of his own testimony or otherwise, establishing that he was,

in fact, excluded from settlement negotiations. Indeed, Culbertson did not present any

evidence whatsoever in the proceedings below. The record establishes only that he did

not join in the Settlements and preserved his right to further litigate his issues before

the Commission, which he did extensively. Thus, even to the extent that Culbertson

had any right to participate in settlement negotiations, he has not established that such

right was denied.

Second, and more fundamentally, nothing in the Code or the

Commission’s regulations requires parties to participate in settlement negotiations, and

the Commission is not required or authorized to manage, regulate, or otherwise oversee

the settlement process. But see 52 Pa. Code § 5.231 (the Commission’s presiding

officer may, when requested by the parties, participate in settlement conferences).

Rather, the Commission has established a non-binding policy that favors settlements in

whole or in part, see 52 Pa. Code § 69.401, and the Commission must review proposed

settlements to ensure that their terms are reasonable and in the public interest. See 52

Pa. Code § 69.406; S.R. at 0501a. In short, Culbertson has not pointed to any authority

that would entitle him to participate in settlement negotiations between some, most, or

all of the parties involved in a Commission rate case. Rather, he is entitled to

participate in full in the Commission proceedings, i.e., present evidence, conduct

discovery, review and object to settlements, file exceptions to ALJ recommended

decisions, file briefs, and appeal to this Court. He has done those things in this case

and more. We simply cannot conclude that he has been deprived of due process, vis à

vis the settlement negotiations or otherwise.

C. Just and Reasonable Rates in the Public Interest

14

Culbertson lastly contends that the rates established by the “black box”

Settlements are not just, reasonable, or in the public interest, in large part because they

are disproportionate to the base rates charged by other natural gas companies

(Culbertson Br., at 51-53.)14 Again, we disagree.

In reviewing the “black box” Settlements, the Commission concluded that

the rates established therein were in the public interest, just, and reasonable. As to the

Partial Settlement, the Commission concluded:

The Partial Settlement is a “black box” settlement, which

means that the parties did not agree to each and every

element of the revenue requirement calculations. Moreover,

settled rate cases are encouraged in Pennsylvania and “black

box” settlements are legal. As such, the Commission has

approved “black box” settlements in the past and has

affirmed them as important tools in achieving consensus over

the resolution of just and reasonable rates in rate cases.

Accordingly, the Commission has recognized that “black

box” settlements can serve an important purpose in reaching

consensus in rate cases[.] . . .

Based upon our review of the record, we conclude that the

“black box” settlement in this proceeding is in the public

interest and results in just and reasonable rates. As we have

concluded in other cases, although the [Partial S]ettlement is

described as a "black box,” meaning that the parties did not

stipulate precisely to how each arrived at its conclusion, it

does not diminish the effectiveness of the examination

conducted by numerous parties having various, and in some

cases antithetical, goals.

14

We note that Culbertson’s brief is littered with a substantial amount of factual material that

was not introduced in the proceedings before the Commission, including news articles, rates of other

natural gas companies, financial figures, and more. With certain exceptions not applicable here, we

may consider only those facts included in the certified record on appeal, and extra-record documents

and factual information may not become part of the record on appeal merely by being appended to a

brief. Thomas v. Grimm, 155 A.3d 128, 134 (Pa. Cmwlth. 2017). We have not considered herein any

of the extra-record material Culbertson has included in his brief.

15

....

[] Culbertson has not presented any evidence or raised any

arguments in support of his objection to the “black box”

[Partial S]ettlement. His opinions, without more, are

insufficient to overturn the findings and recommendation of

the ALJs. Therefore, we find that the “black box” [Partial

S]ettlement in this proceeding, including the agreed-upon

revenue, is in the public interest and results in just and

reasonable rates.

(S.R. at 0520a) (citations omitted). With regard to the Non-Unanimous Settlement, the

Commission concluded:

Viewed in its entirety, the Non-Unanimous Settlement fairly

and equitably resolves the issues impacting residential

consumers, business customers, and the public interest at

large and represents a fair balance of the interests of

Columbia and its customers. Additionally, we find that the

Non-Unanimous Settlement will result in significant savings

of time and expenses for all [p]arties involved by reducing or

avoiding the necessity of further administrative proceedings,

as well as reducing or avoiding the need for possible

appellate court proceedings, thereby conserving

administrative resources. Further, the Non-Unanimous

Settlement provides regulatory certainty with respect to the

disposition of issues which benefits all the [p]arties. . . . [T]he

Non-Unanimous Settlement is supported by substantial

evidence and is in the public interest.

Id. at 0596a.

After a thorough review of the record, the ALJs’ Recommended Decision,

the Commission’s Opinion and Order, and the parties’ briefs, we cannot conclude that

the Commission erred or rendered any findings unsupported by substantial evidence in

the record. Culbertson has not cited any pertinent legal authority or record evidence

indicating to the contrary. As such, his arguments on appeal are without merit.

IV. CONCLUSION

16

In sum, because Culbertson has failed to establish that the Commission

violated his constitutional rights, erred as a matter of law or procedure, or made

findings not supported by substantial evidence in the record, we affirm the

Commission’s December 8, 2022 order.

________________________________

PATRICIA A. McCULLOUGH, Judge

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard C. Culbertson, :

Petitioner :

:

v. : No. 90 C.D. 2023

:

Pennsylvania Public Utility :

Commission , :

Respondent :

ORDER

AND NOW, this 30th day of September, 2024, the December 8, 2022

order of the Pennsylvania Public Utility Commission is AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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