2017

First Quarter

Romeo v. Pa. PUC

No. 498 C.D. 2016 (Filed February 8, 2017), 154 A.3d 422 (Pa. Cmwlth. 2017)

In a panel decision, the Commonwealth Court affirmed the Commission in regard to the preemption issue, but reversed as to its dismissal of PECO’s preliminary objections. Antonio Romeo, a pro se complainant, filed a complaint alleging that PECO was threatening to terminate his electric service because he did not allow PECO access to his property to install a smart meter, alleging that installation of smart meters would be in violation of the federal Energy Policy Act with preempts Acts 129. 

Upon review, the court held that federal law provides explicitly that it does not preempt state law, only that States should “consider” the standards set forth in PURPA and the Energy Policy Act. However, the court also ruled that because the Commission’s order had addressed an issue not raised in Romeo’s exceptions (safety of smart meters), waiver principles did not apply and, therefore, that issue could be raised on appeal. Accordingly, because Romeo could possibly support a lack of safety claim based on the testimony of others, the portion of the Commission’s order that dismissed Romeo’s complaint for legal insufficiency on preliminary objections is reversed and remanded for further proceedings.

Moyer v. Pa. PUC

No. 882 C.D. 2016 (Filed March 13, 2017), 2017 Pa. Commw. Unpub. LEXIS 167, 235 MAL 2017 (awaiting allocatur)

In an unreported panel decision, the Commonwealth Court affirmed the decision of the Commission which permitted Mr. Moyer to participate in PPL’s virtual meter aggregation program for his solar panels and ruled that PPL had correctly billed and credited Mr. Moyer’s account under the commercial GS-1 rate schedule. On appeal, Mr. Moyer argued that pursuant to the recent decision in Sunrise Energy the Commission had no jurisdiction to address this dispute, that the Commission’s final rulemaking order regarding the independent load requirement was unlawful, and that PPL’s manual billing under rate GS-1 was improper. 

Upon review, the court held that because Sunrise Energy addressed only whether the court of common pleas was competent to address AEPS issues, it does not affect the jurisdictional validity of the Commission’s decision and, further, because PPL had allowed Mr. Moyer to participate in its virtual metering aggregation program, his issue regarding an independent load requirement was moot. On the remaining issues, the court held that the Commission had responsibility for regulating utility rates and evaluating tariffs, and that substantial evidence supported both the use of manual billing and the use of rate schedule GS-1 for Mr. Moyer’s account.

Snyder Brothers, Inc. v. Pa. PUC

Nos. 1043 and 1175 C.D. 2015 (March 29, 2017)

In an en banc decision, decided by a 5-2 majority, the Commonwealth Court reversed the Commission decision that had sustained the complaint brought against Snyder Brothers, Inc. (SBI) in regard to impact fees and penalties due under Act 13. In particular, the Commission had interpreted the term “stripper well” and its definition in Section 2301 of Act 13 as exempting the payment of an impact fee only if the gas well was incapable of producing in excess of 90,000 cubic feet of gas per day in every month of the calendar year. As such, under the Commission’s interpretation of Section 2301, because the gas wells at issue produced in excess of 90,000 cubic feet of gas per day in one or more months, the impact fee was due.

Upon review, the majority held that the statutory language is not ambiguous; rather, the word “any” in the definition of stripper well is unambiguous, and it clearly and plainly means “any month” of the year. And because the gas wells at issue produced less than 90,000 cubic feet of gas per day in at least one month, these were “stripper wells” that are exempt from paying the impact fee. The court’s majority further ruled that even if the language were deemed to be ambiguous, a Statutory Construction Act analysis supports the SBI’s position for several reasons. First, the court rejected the contention that a producer could depress production to avoid the fee because that action alone would not render the gas well “incapable” of meeting the threshold level. Second, the court declined to ascribe any significance to deletion of the word “a” and substituting “any” in the drafting process because there is no explanation from the General Assembly or committee members that accounts for this change. Lastly, the court noted that as the amount due included a penalty provision, the statute should be strictly construed in favor of the person being penalized.

The dissent would have adopted the Commission’s interpretation and reasoning, pointing out that while the word “any” is a broad and comprehensive term and generally means “all” or “every,” such is not always the case. Rather, its meaning should be ascertained with reference to its context and other relevant legislation. Here the dissent agreed that the Commission’s interpretation was reasonable and that the majority’s construction could encourage drillers to artificially suppress production levels to avoid paying the impact fee. The dissent also noted that the court should have afforded substantial deference to the interpretation rendered by the agency charged with the statute’s administration.

Second Quarter

Alderwoods (Pennsylvania) Inc. v Pennsylvania Public Utility Commission, et al.

167 A.3d 306, 2017 Pa. Commw. Unpub. LEXIS 326, Decided May 10, 2017

Alderwoods (Pennsylvania) Inc. was a wholly owned subsidiary of Service Corporation International, t/a Burdon L. Hirsch Funeral Home (Alderwoods), which filed a petition for review in the Commonwealth Court’s original jurisdiction alleging the PUC had no jurisdiction to adjudicate a claim for damages even if such claim is limited to only an assessment of liability regarding acts or omissions of an electric distribution company.  The Commonwealth Court held that this case was not within its original jurisdiction because it was initiated by the filing of complaints in a trial court and the PUC’s decision regarding its jurisdiction and any technical issue in the complaint proceeding transferred to its agency by the trial court is procedurally proper.  The PUC’s decision ultimately can be subject to the Commonwealth Court’s appellate review.  Accordingly, the PUC’s preliminary objections to the petition for review were granted and the petition for review was dismissed.

UGI Utilities, Inc. v. City of Reading and Pennsylvania Public Utility Commission 

179 A.3d 1212, 2017 Pa. Commw. Unpub. LEXIS 844, - Decided June 5, 2017

UGI Utilities, Inc. filed an action in Commonwealth Court seeking declaratory judgment that certain ordinances of City of Reading are preempted by the Public Utility Code and a permanent injunction against the City’s enforcement of those ordinances.  The ordinance imposed regulations on the location of gas meters in historic districts.  UGI sought a preliminary injunction enjoining the City from impeding its gas main and lateral replacement and gas meter relocations in the City’s Centre Park Historic District and enjoining the City from enforcing its ordinance with respect to the Centre Park Project.  The Commonwealth Court held UGI had a strong likelihood of prevailing on the merits because the Public Utility Code vests exclusive authority of the regulation of public utility facilities in the PUC and since the ordinance was in conflict with a statutory requirement that gas meters be outside the dwellings, the Public Utility Code preempts a city ordinance and invalidates a permit denial.  Original jurisdiction for deciding a dispute between a natural gas distribution company and the City as to whether the NGDC’s meter complies with Commission regulations is a matter for the PUC to decide in the first instance, subject to appellate review by the Commonwealth Court.  Thus, a preliminary injunction was granted.

HIKO Energy, LLC v. Pennsylvania Public Utility Commission

163 A.3d 1079, Decided June 8, 2017

HIKO Energy, LLC is an electric generation supplier (EGS) who was sued by the Office of Attorney General, Office of Consumer Advocate, and the Pennsylvania Public Utility Commission’s Bureau of Investigation and Enforcement at the Pennsylvania Public Utility Commission for allegedly overcharging approximately 5,500 residential customers nearly 15,000 times during the winter of 2013-2014 a/k/a the “polar vortex winter.”  Ultimately, the EGS settled with the OAG and OCA, agreeing to refund $1.8 million through a refund pool to its customers that it had overbilled.  However, the Commission’s Bureau of Investigation and Enforcement continued its litigation against the company as no civil penalties were a part of the settlement with OAG/OCA.  After a hearing on I&E’s complaint, the Commission found violations of the Public Utility Code and its regulations and directed HIKO to pay a civil penalty of approximately $1.8 million.

The Court held that each overbilling on a monthly basis for each affected customer multiplied by $125 was not an excessive fine. Each overcharge can be feasibly segregated into a discrete violation.  The Court held the Commission did not abuse its discretion, but rather properly analyzed the factors in calculating its civil penalty.  There was no evidence that the Commission punished the EGS for litigation regarding requested relief of civil penalties.  The Court affirmed the Commission’s order.

Pennsylvania Transportation Service, Inc. v. Pennsylvania Public Utility Commission

165 A.3d 1033, Decided July 3, 2017

Pennsylvania Transportation Service, Inc. (PTS) petitioned for review of an order granting in part its petition for reconsideration staff action.  PTS filed the Petition alleging that the PUC erroneously modified the taxicab operator’s description of operating rights in PTS’s certificate of public convenience such that the PUC omitted its rights to provide taxicab service in Philadelphia.  The Commonwealth Court agreed with the PUC’s legal argument that taxicabs operating within the City of Philadelphia are under the jurisdiction of the Philadelphia Parking Authority (PPA) and not the PUC.  Only the PPA has the authority to issue a new certificate of public convenience to PTS.  The Court held that the PUC did not expressly modify the PTS’ rights, just informed PTS that it would need to seek additional approval from the PPA for the transfer of Philadelphia rights.  Accordingly, the Court affirmed the PUC’s order.

Third Quarter

No cases reported.

Fourth Quarter

Keystone Cab Service, Inc., EZ Taxi, LLC, United Cab, LLC and Good Cab, LLC v. Pennsylvania Public Utility Commission 

170 A.3d 1287, 2017 Pa. Commw. LEXIS 779, Decided October 3, 2017

Go Green Taxi, LLC filed an Application for approval to purchase the operating rights of AAA Alpine Taxicab Company, LLC to transport persons in call or demand service in the City of Harrisburg, Dauphin County and within ten miles of Harrisburg limits.  Keystone Cab Service, Inc., EZ Taxi, LLC, United Cab, LLC and Good Cab, LLC filed protests to the Application.  They alleged that Go Green’s Application would not serve a useful purpose responsive to a public need but would duplicate already-existing service to the detriment of existing carriers.  The sole issue before the Commonwealth Court was whether the PUC erred or abused its discretion by upholding an Administrative Law Judge’s decision precluding Protestants’ exhibits at the Application hearing.  After review, the Court affirmed the PUC’s decision.