Southern New England Tel. Co. v. Public Utilities Commission

• Citation: 165 Conn. 114,328 A.2d 695
• Court: Supreme Court of Connecticut
• Decision Date: 06 June 1973
• Parties: The SOUTHERN NEW ENGLAND TELEPHONE COMPANY v. PUBLIC UTILITIES COMMISSION et al.

Page 695

328 A.2d 695

165 Conn. 114

The SOUTHERN NEW ENGLAND TELEPHONE COMPANY v. PUBLIC UTILITIES COMMISSION et al.

Supreme Court of Connecticut.

June 6, 1973.

Bruce C. Mayor, Hartford, for appellant (defendant Sheldon L. hart).

Frederick D. Neusner, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., and Richard L. Barger, Asst. Atty. Gen., for appellee (named defendant).

William J. O'Keefe, New Haven, with whom was Lewis H. Ulman and Judith A. Maynes, New Haven, for appellee (plaintiff).

Before HOUSE, C.J., and COTTER, SHAPIRO, LOISELLE and MacDONALD, JJ.

MacDONALD, Associate Justice.

A careful review and analysis of the lengthy and complex record involved in this appeal discloses that a decision as to a single basic issue is decisive of the merits of the appeal. The question presented is whether the trial court (Rubinow, J.) abused its discretion in denying the motion of the defendant Sheldon L. Hart (hereinafter referred to as Hart) to open the order rendered in the Superior Court (Sidor, J.) on August 20, 1971, which accepted a stipulation entered into and filed on that day by the plaintiff, the Southern New England Telephone Company, and the defendant the public utilities commission as a "final disposition of this case." It would serve no useful purpose to recite here a detailed history of the many steps by which this litigation ultimately came before us, but a certain amount of procedural background is necessary for an understanding of the narrow issue presented.

A proposed new rate schedule filed by the Southern New England Telephone Company (hereinafter referred to as SNETCO) with the public utilities commission (hereinafter referred to as the P.U.C.) was disapproved by the P.U.C. on April 23, 1969, and SNETCO appealed that decision to the Superior Court. The matter was assigned to Hon. Raymond J. Devlin, a state referee, who, exercising the powers of the court, after a series of hearings, on June 24, 1970, filed a memorandum of decision which is fully reported as Southern New England Telephone Co. v. Public Utilities Commission, 29 Conn.Sup. 253, 282 A.2d 915. That decision, which partially sustained SNETCO's appeal and remanded the April 23, 1969, order to the P.U.C. "for a further consideration of the matter in accordance with the rulings contained herein" (Id., 275), was appealed to this court by both SNETCO and the P.U.C. Hart, who had intervened as a party defendant, did not appeal. These appeals were withdrawn, however, in accordance with a stipulation entered into by SNETCO and the P.U.C. which was filed on August 20, 1971, in the Superior Court. The court (Sidor, J.) thereupon rendered an order reciting, inter alia, that the court "accepts the stipulation ... and orders it placed on file ... to serve as the final disposition of this case."

On September 1, 1971, the P.U.C. issued a supplemental finding and decision which embodied the terms of the court-approved stipulation and established a new rate schedule. Thereafter, on September 24, 1971, eighteen days after the end of the term of court in which the order of August 20, 1971, had been rendered, Hart filed his "Motion to Reopen Order Accepting the Stipulation dated August 20, 1971" which was denied by the court (Rubinow, J.) on November 29, 1971, and from this ruling Hart has appealed to this court.

The trial court (Rubinow, J.) concluded that the order of August 20, 1971, was a final judgment from which an appeal could have been taken and thus was within the purview of the rule limiting the power of the court to open a judgment after the expiration of the term during which it was rendered. It reasoned, therefore, that, since the motion to open was filed after the expiration of that term, the court did not have the power to open the judgment. Moreover, the court concluded that even if it had the discretionary power to open the judgment it should, in the exercise of that power, deny the motion.

To determine whether it was an abuse of discretion to refuse to open the order rendered on August 20, 1971, it is necessary to consider the decision rendered by the state referee on June 24, 1970. There it was adjudged "that the Appeal be and it is sustained and said Order is hereby remanded to the Public Utilities Commission for a further consideration [emphasis added] in accordance with the rulings contained in the Memorandum of Decision." Nowhere in the judgment or in the memorandum of decision did the referee order new hearings with notice to interested parties, nor did he require that the P.U.C. report back to the court its findings of fact and conclusions of law. The state referee merely directed the P.U.C. to consider further its decision to disallow various items which SNETCO had included in its rate base. As a result of this direction, the P.U.C. necessarily was required to render an order based on that reconsideration. If the parties objected to the new order on the ground that it was not in compliance with the referee's decision, their remedy therefor would be an appeal taken from the order within thirty days pursuant to § 16-35 of the General Statutes.

It is apparent from the record and from the foregoing discussion that there is no merit to Hart's contention that the P.U.C. order of September 1, 1971, was void either as against public policy or on the ground that the P.U.C. could not properly rescind or reverse any decision, order or authorization made by it without a hearing with due notice to all interested parties. In making the latter claim, Hart apparently relied on § 16-9 of the General Statutes, ¹ but even if the provisions of § 16-9 were to be considered mandatory where the P.U.C. is acting on its own initiative in altering, rescinding or reversing a prior order, the P.U.C. was here acting only under the direction of the state referee's order of June 24, 1970, which remanded the matter "for a further consideration." It is also apparent that Hart has completely failed to establish that the P.U.C. order of September 1, 1971, was not in compliance with the June 24, 1970, decision of the state referee. Moreover, it is clear that there were no violations of the fundamental rights of due process inasmuch as Hart failed to appeal from the September 1, 1971, order of the P.U.C. when it is undisputed that he had actual notice of the order in ample time to have appealed.

With respect to the August 20, 1971, order which accepted the stipulation of SNETCO and the P.U.C. in settlement of their respective appeals, it is obvious that Hart was not bound by the order because he did not have notice of the proceedings before the court (Sidor, J.) nor was he a party to the stipulation. Since Hart was not bound by the order of August 20, 1971, he was free to appeal any order of the P.U.C. based on the stipulation. Hart did not appeal the P.U.C. order of September 1, 1971, which was based on the stipulation, and thus he may not claim now that this order was invalid. Furthermore, since Hart was not bound by the order of August 20, 1971, we do not find that the court abused its discretion in denying the motion to open. In this connection, it should be noted that the motion to open was based on grounds that had not been raised before the state referee, namely, alleged discriminatory features of the rate schedules, and that no appeal was taken from the omission in his decision of any consideration of this claim which had been advanced as a basis for Hart's original motion to be made a party defendant. The trial court (Rubinow, J.) concluded that "a motion to open ... is not an appropriate judicial proceeding for raising and resolving the legal and factual issues resulting from the relevant facts in this case, and from the conflicting claims of the parties." We find no error in this conclusion.

Since we find that the trial court, in so ruling, did not abuse its discretion, it is not necessary to consider the remaining assignments of error.

There is no error.

In this opinion HOUSE, C.J., and SHAPIRO and LOISELLE, JJ., concurred.

COTTER, Associate Justice (dissenting).

The court (Devlin, J.) in its judgment dated June 24, 1970, sustained the appeal and remanded the case to the public utilities commission, hereinafter referred to as the P.U.C., for a further consideration of the matter in accordance with its rulings "on paragraphs 1, 3 and 4 of the finding" of the commission. Southern New England Telephone Co. v. Public Utilities Commission, 29 Conn.Sup. 253, 275, 282 A.2d 915. It ruled, inter alia, that the commission acted arbitrarily in failing to take into consideration definite ascertainable expenses involving wage increases, tax increases and pension commitments, to become effective before July 1, 1969, submitted as evidence by the plaintiff when the commission adopted, as a test year the twelve months ending October 31, 1968; and further ruled that the P.U.C. improperly excluded from the rate base public utility property held for future use since it did not meet the requirement of public use; and that its action had the effect of a finding, as a matter of law, that unless property was in fact in use on the last day of the test year it would be excluded from the rate base and was, therefore, without legal support.

The court, thereupon, directed that the matter be remanded pursuant to General Statutes § 16-37, which provides in part: "If, upon hearing such appeal, it appears to the court that any testimony has been improperly excluded by the commission or that the facts disclosed by the record are insufficient for the equitable disposition of the appeal, it shall refer the case back to the commission to take such evidence as it may direct and report the same to the court [emphasis added], with the commission's findings of fact and conclusions of law." The case was remanded by the court for further consideration of the matter in accordance with rulings of the court on paragraphs 1, 3 and 4 of...