Suburban Propane Gas Corporat10

Text (OCR of the scan; may contain errors)

INTERLOCUTORY ORDERS, ETC. 1611

response to comments filed by Philips Petroleum Company herein or for alternative relief, and upon respondent' s request for leave to file an interlocutory appeal, filed September 23, 1968, from the hearing examiner's order dated September 13, 1968, extending the time within which Phillips Petroleum Company has to move to quash or limit the subpoena duces tecum served upon it June 27 1968, and extending the time within which it may comply therewith. This matter is also before the Commission on a request by Phillips Petroleum Company, filed September 25, 1968, to file an interlocutory appeal from the same order of the examiner of September 13, 1968.

Respondent' s motion of September 19, 1968, concerns the comments filed by Philips Petroleum Company with respect to respondent' s interlocutory appeal from the hearing examiner order of July 19, 1968. PhiJips Petroleum Company filed its comments pursuant to permission granted by the Commission in its order of August 8, 1968. The Commission, on September 13 1968, denied a request by the respondent to file a reply to PhiJips Petroleum Company's comments. Respondent now seeks the following relief: it requests an order granting it leave to file a response to Phillips Petroleum Company's comments, a copy of which it has attached to its request, or, in the alternative, leave to reargue its cross-motion, filed September 12, 1968, for permission to submit a reply; and upon such reargument, to permit the attached response to be filed.

The Commission has determined, in the circumstances and considering that respondent has attached to its motion its response to Phillips Petroleum's comments, such response should be received into the record. The Commission, hovvever, has already ruled upon respondent's interlocutory appeal filed August 23, 1968, and its order and opinion therein were issued on September 20 1968 (p. 1602 hereinJ. Our consideration of respondent' s response wil be to determine if anything therein might alter the Commission's views as expressed in its order and opinion issued September 20, 1968.

Respondent' s first point in its response is that the hearing examiner failed to follow the direction of the Commission as set forth in Texas Indush'ies, Inc. Docket Ko. 8656 (order issued October 8, 1965) (68 F. C. 1195J, and that the examiner presently has before him al1 of the materials necessary to narrow the issues and rule upon Suburban's asserted rights to discovery from Phillips Petroleum Company and other parties. It is claimed that Philips Petroleum Company embraces a view calling for delay in compliance with respondent' s discovery requests. The Commission, in its opinion and order, made no ruling one way or the other on the proper times for production under subpoenas or for for theother responses. These were determined to be matters examiner's discretion. Our vie\v on this is not changed. In its second point Suburban argues that Phillips Petroleum Company suggests it has been unreasonable in the drafting of .is subpoenas and other related actions, and it submitf, that this is unjustified. Su.,h an argument seems to present an issue which was not involved in the Commission's prior determination. In its third point respondent contends that Phillips Petroleum Company suggests that Suburban will not succeed in establishing facts as to a cost-justification defense and it submits that it is entitled to the facts to prove such a defense. The question, so far as Phillips Petroleum Company allegedly suggests-whether respondent mayor may not succeed in establishing facts as to its defense-likewise concerns an issue which was not before the Commission. Respondent' s assertion as to its rights is a reargument of points it previously made to the Commission. We do not believe that these arguments present adequate grounds for revising our views.

Finally, respondent argues that the hearing examiner has abrogated his responsibility by bis rulings on the two Philips subpoenas and denying respondent's application for subpoenas to alleged disfavored competitors and in other respects. Such point in the response seems not to be connected with the comments made by Phillips. Accordingly, no further consideration will be given to it.

In summary, we will hereby receive respondent's response to tbe comments filed by Phillips Petroleum Company into the record. We have considered respondent's arguments in its response and it is our holding that nothing therein changes our views set forth in our order and opinion denying interlocutory appeal and requests for permission to appeal, issued September 20, 1968 in which we sustained the hearing examiner in challenged prehearing discovery and procedural rulings. Respondent is not prejudiced from presenting its arguments to the hearing examiner for his further consideration in the matter. Respondent, as above indicated, has also filed a request for leave to file an interlocutory appeal from the examiner's order dated September 13, 1968. ' Tbis order extends thc time within l While it is of little signif.cance in the cirCuffstanceR hel' , it seems that the e.,aminer order frum which both respondent and Phillips Petroleum Company have reql1e ted permi sion to me appeals sufficiently concerns a subpoena matter to come within the provisions of 35(b)

INTERLOCUTORY ORDERS, ETC. 1613

which Philips Petroleum Company may move to quash or limit the subpoena duces tecum served upon it on June 27, 1968, to fifteen business days after the Commission has disposed of the matters on appeal and extends the time within which Philips Petroleum Company may comply with the subpoena to sixty days after the Commission disposes of such matters. Respondent asserts that this order prejudices it in deferring once more the time for Phillips to move with respect to, or comply with, the cost-justification subpoena. We believe that any issue raised by this request has been covered in the Commission's recent order and opinion issued herein on September 20, 1968 (p. 1602 hereinJ. No showing has been made that the ruling complained of involves substantial rights and wil materially affect the final decision and that a determination of its correctness before the completion of the hearing is essential to serve the interests of justice.

Philips Petroleum Company also has applied for leave to file an interlocutory appeal from the hearing examiner's order of September 13, 1968, claiming, among other things, that it is not certain whether the order was issued with or without prejudice to its right to reapply for the relief requested in its motion filed September 12, 1968, and if it is with prejudice it seeks a reversal; otherwise, a clarification. Philips Petroleum Company's request borders on the frivolous. If it did not understand the order, it should have sought clarification from the hearing examiner who issued the order and who, furthermore, is responsible for the proceeding. Its request will be denied. Accordingly, It is o1'dn' That respondent's motion for leave to submit a response to comments filed by Philips Petroleum Company, which response is attached to its motion, be, and it hereby is, granted. It is fu;. ther ordered That respondent's response filed September 19 1968, be, and it hereby is, received into the record. It is furthe?' ordered That respondent's request filed- September, 1968 for leave to file an interlocutory appeal from the hearing examiner's order dated September 13, 1968, be, and it hereby is denied.

It is fw-ther onlel'ed That the request of Phillips Petroleum Company, filed September 25, 1968, for permission to file an interlocutory appeal be, and it hereby is, denied. Commissioner Elman not participating. of the Commission's rules dealing with appeals on rulings l eJating to applications fOl" compl;)SOJ'Y process rather than 23 co,,€r;ng interlocutory appeals, under which the twu hav," proceeded.

MAREMONT CORPORATION