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