2015 Summaries of PUC Court Decisions
 

First Quarter

 

Pennsylvania State Educators Assn. v. Office of Open Records

No. 396 M.D. 2009 (Filed February 17, 2015)

The Pennsylvania Commonwealth Court (en banc) issued an opinion that enjoined both the Office of Open Records (OOR) and local agency school districts from releasing the affected school district employees’ home addresses at the Right-to-Know request stage until each affected employee has had individual written notice and a meaningful opportunity to object to disclosure based on the personal security exemption set forth in section 708(b)(1)(ii) of the Right-to-Know Law (RTKL), 65 P.S. 67.708(b)(1)(ii). The court held that without such notice and opportunity to respond by affected employees, the lack of due process violates the statutory scheme of the RTKL. The court made clear that it will be the employee’s responsibility to come forward with evidence that his or her personal security will be at risk if the agency discloses his or her homeaddress. 

 

Kisha Dorsey v. PA. P.U.C.

No. 519 C.D. 2014 (Filed February 24, 2015)

On February 24, 2015, in an unreported decision, the Commonwealth Court affirmed the Commission’s February 19, 2014 Order that denied Ms. Dorsey’s petition for reconsideration of a November 22, 2013 Commission Order.  That November Order modified the Initial Decision of an Administrative Law Judge (ALJ) ordering the establishment of a different payment agreement between Ms. Dorsey and Philadelphia Gas Works (PGW).  The Commonwealth Court held that it was unable to entertain Ms. Dorsey’s challenge to the Commission’s authority to review, sua sponte, and modify, the ALJ’s Initial Decision because she had not raised that concern in her petition for reconsideration.  Pa. R.A.P. 1551(a) (no question shall be heard or considered by the court which was not raised before the government unit).  Even so, the Court noted that per the procedure set forth in Section 332(h), the Commission is empowered to reverse an initial decision if it disagrees with any of the findings of the ALJ so long as the Commission’s findings are based on substantial evidence. 

The court’s scope of review on a denial of reconsideration is limited to whether the Commission abused its discretion.  Here, the Commonwealth Court held that the Commission did not abuse its discretion because it has discretion whether to:  (1) act on a petition for reconsideration; and (2) establish a payment agreement. The Court concluded that the Commission had considered payments made to Ms. Dorsey’s account through LIHEAP during the time period at issue and determined that Ms. Dorsey did not provide any evidence (i.e., medical certification) to prove that her health concerns should have been considered in addition to her income when determining whether to establish a payment agreement. 

In her dissent, Senior Judge Friedman concluded that payments credited to Ms. Dorsey’s PGW account constituted payment and that the Commission erred in denying Ms. Dorsey a payment agreement.

Lastly, in regard to the Commission’s authority to review initial decisions, the court noted, in dicta, that although the consumer would have been given notice, via exceptions, that an ALJ’s initial decision was being challenged and therefore subject to modification, there is no notice given if two or more Commissioners call up the initial decision for review under Section 332(h).

 

Second Quarter

 

Walter & Donna Painter v. Pa. PUC

No. 1010 C.D. 2014 (Filed May 8, 2015), 116 A.3d 749 (Pa. Cmwlth 2015)

The Commonwealth Court of Pennsylvania affirmed the Commission’s Order dismissing Mr. and Mrs. Painter’s complaint, on behalf of themselves and all others similarly situated (Customers), and the exceptions to the Initial Decision of the Administrative Law Judge (ALJ).  

Customers alleged that Aqua PA enforced the distribution system improvement charge (DSIC) on a bills rendered basis rather than a services rendered basis violating its tariff and engaging in unfair trade practices, conversion, and breach of contract.  Initially, Customers filed a complaint in the Lawrence County Court of Common Pleas.  The matter was stayed pending the Commission’s review and Customers subsequently filed a complaint with the Commission.  In Aqua PA’s answer, it admitted enforcing the DSIC charge on a bills rendered basis.  The Administrative Law Judge (ALJ) recommended that the Commission grant summary judgement because there was no issue of material fact.  In addition, the ALJ stated that the bills rendered basis was consistent with the Commission’s regulations and did not violate Aqua PA’s tariff.  Customers filed an exception arguing that the services rendered basis was required by a supplement that revised Aqua PA’s tariff.  The Commission denied the exception, adopted the ALJ’s recommendation, and dismissed Customers’ complaint.

The Court noted that the Commission’s interpretation may only be reversed if clearly erroneous.  The Court concluded that Aqua PA’s use of the bills rendered basis was reasonable and did not violate its tariff based on a reading of the tariff provisions as a whole.  Further, the Court stated that Customers failed to meet their burden of proof.  The Court held that the Commission did not err in dismissing the complaint because there was no question of material fact in dispute and the Commission has the authority to dismiss a complaint without a hearing if the hearing is unnecessary or is not in the public interest. 

 

Jeffrey Gibson v. Pa. PUC, et al.

No. 1:15-CV-00855 (Filed June 18, 2015), 2015 U.S. Dist. LEXIS 08905 (M.D. Pa. 2015)

The United States District Court for the Middle District of Pennsylvania adopted the Magistrate Judge’s Report and Recommendation and dismissed Mr. Gibson’s complaint without prejudice as frivolous and malicious and for failure to state a claim.  Mr. Gibson acted pro se.  In his complaint, he alleged that United Water PA installed microwave transponders on water meters making Pennsylvania residents ill.  Judge Saporito recommended that the Court dismiss the complaint noting that Mr. Gibson had a history of frivolous litigation and previously brought the same claim in another action that was dismissed.  Mr. Gibson objected by sending the Court only the second page of his initial compliant.  The Court found that de novo review was not required because Mr. Gibson did not make a specific objection.  Therefore, the Court held that the Magistrate Judge did not err in his findings.

 

Third Quarter

 

Coalition for Affordable Util. Servs. & Energy Efficiency in Pa. v. Pa. P.U.C. (consol. with) Tanya J. McCloskey, Consumer Advocate v. Pa. P.U.C.

Nos. 445 C.D. 2014 and 596 C.D. 2014 (Filed July 14, 2015), 120 A.3d 1087 (Pa. Cmwlth. 2015)

The Commonwealth Court of Pennsylvania affirmed the Commission’s rejection of a portion of PECO’s Customer Assistance Program (CAP) plan that imposed a price ceiling on electric generation suppliers (EGSs) for PECO CAP customers.  The Court reversed the Commission’s rejection the Office of Consumer Advocate’s (OCA’s) proposal that prohibited EGSs from imposing cancellation or termination fees on PECO CAP customers.

Petitioners appealed two Commission orders that rejected a portion of PECO’s CAP plan and rejected the OCA’s proposal. PECO’s CAP plan allowed customers to select their EGS.  The Commission rejected the portion of the plan that required EGSs that enrolled PECO CAP customers to charge a rate below PECO’s residential price-to-compare (PTC).  The Commission reasoned that it lacked authority to impose a price ceiling under the Choice Act, that a price ceiling was not in the best interest of CAP customers, and that the option to select an EGS sufficiently benefited CAP customers.  The OCA’s proposal prohibited EGSs that participated in PECO CAP from imposing cancelation or termination fees on customers.  The Commission rejected the proposal reasoning that it lacked the authority to prohibit cancelation or termination fees and that doing so would result in higher rates for PECO CAP customers as well as a decrease in the number of participating EGSs.

The Court found that, under the Choice Act, the Commission has the authority to approve “CAP rules that would limit the terms of any offer from an EGS” in the interest of ensuring the cost-effectiveness of universal service plans. Accordingly, the Commission had the authority to adopt the restrictions set forth in PECO’s CAP plan and the OCA’s proposal.  The Court held that the Commission’s rejection of PECO’s CAP plan price ceiling was supported by substantial evidence, while the rejection of the OCA’s proposal was not supported by substantial evidence because the proposal was consistent with the goal of customer affordability under the Choice Act.  The Court instructed the Commission to approve a rule prohibiting EGSs from charging PECO CAP customers cancellation or termination fees.

 

Lyft, Inc. v. Pa. P.U.C.

No. 843 C.D. 2015 (Filed July 16, 2015)

The Commonwealth Court of Pennsylvania denied the application of Raiser-PA, LLC (Raiser) for permission to intervene in the appellate proceeding that arose out of Lyft’s petition for review of the Commission’s Order Denying Proprietary Nature Claims and Reconsideration Order.

Lyft filed applications to provide experimental transportation services in Allegheny County and throughout the Commonwealth.  The Administrative Law Judges (ALJs) denied Lyft’s applications in initial decisions and the Commission reversed.  The ALJs issued an interim order requesting Lyft’s trip data and Lyft filed a petition for protective order requesting that its trip data be considered proprietary.  The Commission concluded the trip data was not proprietary and issued an order denying Lyft’s petition.  The Commission noted that Lyft’s trip data included trips that occurred before and after a cease and desist order was issued.  Therefore, a portion of the trips occurred when Lyft was not permitted to operate in Pennsylvania placing the public at risk.  Lyft filed a petition for review of the Commission’s order.  Subsequently, Raiser filed an application for permission to intervene arguing that the confidential status of its trip data was in jeopardy.  The Commission argued that, under Pa. R.A.P. No. 1531(a), only a party to a proceeding may participate in an appeal. 

The Court agreed that Raiser did not have a right to intervene under Pa. R.A.P. No. 1531(a), but stated that it must consider whether Raiser had sufficient interest to intervene under Pa. R.A.P. No. 123.  The Court concluded the following: Raiser did not have sufficient interest because it argued only potential harm, Raiser failed to argue that its interest was not adequately represented by the existing parties, Raiser was not aggrieved because the order did not relate to its trip data, and Raiser was not bound by the order because it addressed only Lyft’s trip data.  The Court noted that Raiser may participate amicus curiae under Pa. R.A.P. No. 531.
 

Lyft, Inc. v. Pa. P.U.C.

No. 843 C.D. 2015 (Filed July 16, 2015)

In an unreported opinion, the Commonwealth Court of Pennsylvania granted the application of The Pittsburgh
Post-Gazette (PG) for permission to intervene in the above-mentioned proceeding and denied Lyft’s motion to strike.

Lyft filed applications to provide experimental transportation services in Allegheny County and throughout the Commonwealth.  The Administrative Law Judges (ALJs) denied Lyft’s applications in initial decisions and the Commission reversed.  The ALJs issued an interim order requesting Lyft’s trip data and Lyft filed a petition for protective order, which was denied.  In a closed proceeding, Lyft testified before the ALJs regarding the protective order.  Kim Lyons, a PG reporter, was removed from this proceeding.  PG filed a petition to intervene in opposition to “attempts to seal the record.”  Lyft filed a petition for review of the ALJ’s denial of the protective order.  As allowed by the Commission, PG responded to Lyft’s petition and participated in the proceedings.  PG argued that, under common law and constitutional law, the public has a right to access judicial proceedings.  Subsequently, the Commission issued an order denying Lyft’s petition for protective order and PG’s petition to intervene.  Lyft requested reconsideration, which the Commission granted, and PG, again, participated.  The Commission affirmed its prior order and Lyft filed a petition for review.  PG filed a notice of intervention arguing that it had an interest in ensuring public access to the record and Lyft filed a motion to strike the notice.

On July 13, 2015, the Court heard arguments by Lyft and PG.  The Court noted that the record clearly indicated that the Commission “did not confer party status on PG” and, because PG was not a party, it did not have the right to intervene.  However, the Court stated that PG participated extensively in the proceedings and sought intervention for the limited purpose of acting as an advocate for public access.  The Court stated that PG’s intervention would not frustrate the rules of procedure or disrupt the development of the record.  Therefore, the Court permitted PG to intervene in the appeal.

 

Dauphin County Indus. Dev. Auth. v. Pa. P.U.C.

No. 1814 C.D. 2014 (Filed September 9, 2015), 123 A.3d 1124 (Pa. Cmwlth. 2015)

The Commonwealth Court of Pennsylvania reversed the Commission’s approval of a settlement between PPL and the Dauphin County Industrial Development Authority (Development Authority). 

The Development Authority is a customer-generator that generates electricity to sell to electricity providers.  If it generates more energy than it utilizes, PPL Electric Utilities Corporation (PPL), the default provider for Dauphin County, purchases the energy.  The Development Authority initially elected to use a fixed rate at 8.441 cents per kWh, then it elected to use a Time-of-Use rate at 13.736 cents per kWh.  However, the Commission froze rates before the Time-of-Use rate went into effect and, therefore, the Development Authority remained on the fixed rate. 

PPL sought the Commission’s approval of a pilot Time-of-Use program in which a customer-generator must use a fixed rate, unless it selects an electric generation supplier (EGS) that applies for approval by the Commission to use a Time-in-Use rate.  The Development Authority filed a petition to intervene to challenge pilot program.  The Development Authority argued that PPL’s Time-of-Use program did not provide sufficient compensation for electricity sold to PPL and that PPL had a statutory duty to offer a Time-of-Use rate to all customers under the Electricity Generation Customer Choice and Competition Act (Competition Act).  The Commission argued that default providers are not required to offer Time-of-Use rates directly to customer-generators and that the Commission has deference in interpreting the statute.  

The Court noted that, when a statute’s language is unambiguous, the Commission is not entitled to interpretive deference.  The Court stated that the language of the Competition Act is clear in that it uses the phrase “shall offer.”  Therefore, the Court held that PPL is statutorily required to offer Time-of-Use rates to customer-generators and that the Commission erred in approving the settlement.

 

Fourth Quarter

 

PPL Elec. Utils. Corp. v. City of Lancaster & Pa. P.U.C.

No. 462 M.D. 2013 (Filed October 15, 2015), 125 A.3d 837 (Pa. Cmwlth. 2015)

The Commonwealth Court of Pennsylvania granted in part and denied in part PPL Electric Utilities Corporation’s (PPL) request for summary relief filed following its petition for review seeking declaratory and injunctive relief with regard to the City of Lancaster’s (City) Administrative Ordinance No. 16-2013.

On December 17, 2013, the City enacted the Ordinance as a comprehensive plan for managing its rights-of-way including public utilities and facilities within a right-of-way.  Section 263B-3 of the Ordinance permitted the City to inspect facilities within a right-of-way for public safety hazards and compliance with Commission standards.  Section 263B-4(6) authorized the City to order utilities to temporarily alter the position of facilities in a right-of-way under certain circumstances, such as the installation of public improvements.  Section 263B-5 allowed the City to collect a maintenance fee from utilities for the use of a right-of-way.  Lastly, section 263D-1 permitted the City to impose penalties for violations of the Ordinance.  In its application for summary relief, PPL sought a declaration that sections 263B-3, 263B-4(6), 263B-5, and 263D-1 of the Ordinance were invalid and an order enjoining the City from enforcing these sections.  PPL argued that the Ordinance violated the policy of uniform, state-wide regulation of public utilities and that the Ordinance was preempted by the Public Utility Code. 

The Court noted that the legislature delegated the power to regulate utilities to the Commission exclusively and intended that the Public Utility Code preempt other rules regarding the regulation of utilities.  The Court stated that the City is not permitted to regulate utilities.  The Court concluded that sections 263B-3, 263B-4(6), and 263D-1 of the Ordinance conflicted with the Public Utility Code, were preempted by the Public Utility Code, and were, therefore, invalid.  As such, the Court enjoined the City from enforcing these sections.  The Court held that section 263B-5 is not a utility regulation in that it only imposes a fee for the City’s maintenance of a right-of-way.  The Court stated that this section was not preempted by the Public Utility Code and was not invalid.

 

UGI Utils., Inc. v. City of Lancaster, et al.

No. 464 M.D. 2013 (Filed October 15, 2015), 125 A.3d 858 (Pa. Cmwlth. 2015)

The Commonwealth Court of Pennsylvania granted in part and denied in part UGI Utilities, Inc.’s (UGI) request for partial summary relief filed following its petition for review seeking declaratory and injunctive relief with regard to the City of Lancaster’s (City) Administrative Ordinance No. 16-2013.

On December 17, 2013, the City enacted the Ordinance as a comprehensive plan for managing its rights-of-way including public utilities and facilities within a right-of-way.  Section 263B-2 of the Ordinance required public utilities to provide the City with two paper copies and one electronic copy of a map of the location of facilities in a right-of-way.  Section 263B-3 permitted the City to inspect facilities within a right-of-way for public safety hazards and compliance with Commission standards.  Section 263B-4(9) required all utilities with street opening permits to provide the City with updated maps.  Lastly, Section 263B-5 allowed the City to collect a maintenance fee from public utilities for the use of a right-of-way.  In its application for partial summary relief, UGI sought an order enjoining the City from enforcing sections 263B-2, 263B-3, 263B-4(9), and 263B-5 of the Ordinance and a declaration that these sections were invalid.  UGI argued that the Ordinance violated the policy of uniform, state-wide regulation of public utilities, that the Ordinance was preempted by the Public Utility Code, and that the Ordinance imposed excessive fees and costs that would affect utility rates.

The Court referred to its discussion of the Commission’s exclusive authority to regulate public utilities in the        above-mentioned matter and stated that it reached the same holding with regard to sections 263B-3 and 263B-5.  Further, the Court held that sections 263B-2 and 263B-4(9) impermissibly imposed additional requirements on public utilities, were preempted by the Public Utility Code, and were, therefore, invalid.  As such, the Court enjoined the City from enforcing these sections.
 

Tanya J. McCloskey, Consumer Advocate v. Pa. P.U.C.

No. 1012 C.D. 2014 (Filed November 3, 2015), 127 A.3d 860 (Pa. Cmwlth. 2015)

The Commonwealth Court of Pennsylvania affirmed the Commission’s May 22, 2014 Order approving the Distribution System Improvement Charge (DSIC) of Colombia Gas of Pennsylvania, Inc. (Colombia). 

Colombia filed a petition for approval of its DSIC pursuant to 66 Pa. C.S. § 1353(b) to recover costs associated with its distribution system improvement projects.  Pursuant to the Commission’s Order, Colombia was not required to include an ADIT adjustment in its DSIC calculation and was permitted to include a state income tax “gross-up.”  Tanya J. McCloskey, Acting Consumer Advocate of the Office of Consumer Advocate (OCA), filed a petition for review of the Commission’s Order.  The OCA argued that the Commission erred in approving Colombia’s DSIC by allowing Colombia to omit the ADIT adjustment and include the state income tax “gross-up.”  The OCA evaluated the individual components of Colombia’s DSIC calculation and argued that the rate was unjust and unreasonable.

The Commission argued, and the Court agreed, that the appropriate inquiry in evaluating a DSIC is whether the total effect of the DSIC is “just and reasonable.”  The Commission also argued that the DSIC ought to be considered together with the customer protection, or “fail safe,” provisions of 66 Pa. C.S. § 1358, which impose an earnings cap that ensures reasonable rates by resetting the DSIC at zero if the utility will earn a rate of return higher than that allowable per its DSIC calculation.  The Court stated that Pennsylvania courts concluded that there is no single method to reach a reasonable rate and that the Commission has the discretion to determine which factors to consider in evaluating rates.  The Court concluded that the OCA’s concerns were addressed and that it would not “substitute its judgement for that of the Commission.”  Accordingly, the Court affirmed the Commission’s Order.
 

Tanya J. McCloskey, Consumer Advocate v. Pa. P.U.C.

No. 1358 C.D. 2014 (Filed November 3, 2015), 2015 Pa. Commw. Unpub. LEXIS 793 (Pa. Cmwlth. 2015)

In an unreported opinion, the Commonwealth Court of Pennsylvania affirmed the Commission’s July 24, 2014 Order approving the Distribution System Improvement Charge (DSIC) of Little Washington Wastewater Company (LW).  LW filed a petition for approval of its DSIC pursuant to 66 Pa. C.S. § 1353(b) to recover costs associated with its collection and conveyance system improvement projects.  Under the Commission’s Order, LW was not required to include an ADIT adjustment in its DSIC calculation and was permitted to include a state income tax “gross-up.”  Tanya J. McCloskey, Acting Consumer Advocate of the Office of Consumer Advocate (OCA), filed a petition for review of the Commission’s Order.  Citing its reasoning in the above-mentioned matter, the Court affirmed the Commission’s Order.

 

AT&T Corp. v. Core Communs. Inc. (consol. with) AT&T Corp. v. Robert F. Powelson, Chairman of the Pa. P.U.C., et al.

Nos. 14-1499 and 14-1664 (Filed November 25, 2015), 806 F. 3d 715 (3d. Cir. 2015)

The United States Court of Appeals for the Third Circuit vacated the judgment of the U.S. District Court for the Eastern District of Pennsylvania (District Court) in favor of AT&T Corp. (AT&T) and remanded the case for a judgment in favor of the Commission and Core Communications, Inc. (Core).

The Telecommunications Act of 1996 (TCA) requires interconnection between Incumbent Local Exchange Carriers (ILECs) and Competitive Local Exchange Carriers (CLECs) allowing the customers of ILECs and CLECs to call each other with the originating party’s carrier transporting the call and the called party’s carrier terminating the call.  ILECS and CLECS are required to maintain reciprocal compensation agreements for transport and termination.  The Federal Communications Commission (FCC) issued the ISP Remand Order and determined that, under Section 251(b),    ISP-bound traffic is considered “information access” and is exempt from “the reciprocal compensation scheme.”  As such, the FCC issued a rate cap for ISP-bound traffic.

AT&T and Core are CLECs.  From 2004 to 2009, Core terminated calls from AT&T’s customers to Core’s customers. Core did not bill AT&T for the terminations until January 2008 and AT&T refused to pay arguing that the traffic was on a bill-and-keep basis.  Core filed a complaint with the Commission requesting payment at the long-distance rate.  The Commission ordered that AT&T pay Core applying the federal rate cap.  The Commission also applied a four-year statute of limitations requiring payment for only terminations on or after May 19, 2005.  Subsequently, AT&T filed a federal claim with the District Court arguing that the Commission did not have jurisdiction over local ISP-bound traffic.  The District Court found that the Commission lacked jurisdiction and ruled in favor of AT&T. The Commission and Core appealed District Court’s ruling.

With regard to jurisdiction over local ISP-bound traffic, the Court held that the FCC does not have exclusive jurisdiction and that states have jurisdiction to regulate ISP-bound traffic provided that state regulations do not conflict with federal law.  The Court examined the FCC’s language in the ISP Remand Order and stated that “the FCC demonstrated that it could not have been ruling about exclusive jurisdiction.”  The Court also stated that the FCC “clearly contemplated states’ continued involvement in ratesetting” and that the FCC “meant only to preempt rates that conflict with its own regulation.”  Therefore, the Court held that the District Court erred in finding that the Commission lacked jurisdiction over local ISP-bound traffic. 

In addition, the Court concluded that the Commission’s order did not violate federal law.  AT&T argued that the Commission’s order violated 47 U.S.C.S. §§ 201, 203 because Core did not file a federal tariff or contract for billing with AT&T.  The Court found that the ISP Remand Order does not require tariffs and that the FCC set the federal rate cap as an upper limit to state tariffs.  AT&T also argued that the Commission’s order violated 47 U.S.C.S. § 251(b)(5) because Core did not have a reciprocal compensation agreement with AT&T.  The Court found that reciprocal agreements for ISP-bound traffic are controlled by the ISP Remand Order, which Commission’s order complied with.  Further, the Court held that the Commission did not violate the rule against retroactive rulemaking because the rate cap was predictable and was the most likely rate to be applied.  The Court also held that the Commission utilized the correct statute of limitations because 28 U.S.C. § 1658, the four-year statute of limitations, applies to any federal action after 1990.  Therefore, the Court remanded the case for the entry of a judgement in favor of the Commission and Core.

 

Tanya J. McCloskey, Consumer Advocate v. Pa. P.U.C.

No. 1023 C.D. 2014 (Filed December 18, 2015), 2015 Pa. Commw. Unpub. LEXIS 919 (Pa. Cmwlth 2015)

In an unreported opinion, the Commonwealth Court of Pennsylvania affirmed the Commission’s April 3, 2014 order approving a Storm Damage Expense Rider (SDER) for PPL Electric Utilities Corporation (PPL).

PPL filed a base rate case that included a storm damage insurance claim related to Hurricane Sandy in the proposed rates.  The Administrative Law Judge (ALJ) recommended that PPL establish a plan for a storm damage reserve account with input from the public advocates.  The Commission agreed with the ALJ’s recommendation and issued an order requiring PPL to file an SDER.  The Office of Consumer Advocate (OCA) filed a petition for review requesting clarification.  The Commission responded that PPL should collaborate with the public advocates to create both a storm damage reserve account and an SDER.  PPL initiated discussions with the advocates, but did not reach an agreement.  Subsequently, PPL filed a proposed SDER.  The Commission issued an order approving the SDER on April 3, 2014.  Tanya J. McCloskey, Acting Consumer Advocate of the Office of Consumer Advocate (OCA), filed a petition for review of the Commission’s order.  The OCA argued that the Commission’s approval of the SDER constituted “impermissible single-issue ratemaking,” that Commission’s approval of the SDER was not supported by substantial evidence, and that the Commission violated the OCA’s due process rights.  The Commission filed a motion to dismiss in part.

The Court stated that PPL’s storm damage expenses were not within the utility’s control.   The Court also stated that 66 Pa. C.S. § 1307 does not prohibit the recovery of storm damage expenses or the use of a surcharge for recovery.  Therefore, the Court concluded that Commission did not abuse its discretion and that the approval of the SDER did not constitute “impermissible single-issue ratemaking.”  The Court also concluded that there was substantial evidence to support the Commission’s approval of the SDER because the record supported the Commission’s findings.  Further, the Court concluded that the Commission did not violate the OCA’s due process rights because the Pennsylvania Supreme Court already determined that the review process under 66 Pa. C.S. § 1307 does not violate due process rights.  Accordingly, the Court affirmed the Commission’s order.