2018

First Quarter

Pennsylvania Public Utility Commission v. Sunrise Energy, LLC

No. 504 C.D. 2017, 177 A.3d 438, decided January 12, 2018

The PUC petitioned for review of a final determination of the Office of Open Records (OOR), granting Sunrise Energy, LLC access to certain information held by the PUC and related to an identified Commonwealth Court proceeding.  The Commonwealth Court held that Sunrise Energy, LLC had standing to appeal under the right-to-know-law even though the requester, Mr. David Hommrich initiated the request and did not specify that it was in his official capacity as an officer of Sunrise Energy, LLC.  The Court further found the OOR’s final determination did not infringe upon the Pennsylvania Supreme Court’s exclusive authority to regulate the practice of law and the OOR’s decision was vacated and remanded to the OOR to determine whether the emails identified by the PUC constituted attorney-work-product of either the PUC or FirstEnergy to supplement the record. 

Second Quarter

Retail Energy Supply Association v. Pennsylvania Public Utility Commission

No. 230 C.D. 2017, 185 A.3d 1206, decided May 2, 2018

RESA, an electric generation supplier (EGS) trade organization challenged the Commission’s approval of a Customer Assistance Program – Standard Offer Program (CAP-SOP), which was the result of a joint-litigation position reached by PPL, OCA, I&E, and CAUSE-PA. The CAP-SOP was intended to mitigate the harm to both low-income customers and ratepayers resulting from PPL’s CAP customers paying more than the price to compare when shopping for their electric generation supply. The CAP-SOP required any participating EGSs to give CAP customers a 7% discount off the price-to-compare and no early cancellation or termination fees, and was the only way that low-income customers could shop and remain in CAP. 

RESA argued that the Commission’s approval of the CAP-SOP violated The Choice Act, which permits all customers of electric distribution companies (EDCs) in the Commonwealth to choose their EGS, and that the CAP-SOP deprived CAP customers of the right to shop for their EGS.  RESA also contended that the Commission was engaging in “governmental slamming”, was impermissibly setting a price ceiling, that there was no substantial evidence that there was harm to PPL’s USECP due to CAP shopping, and that the Commission and intervening parties failed to consider reasonable alternatives to the CAP-SOP. 

Citing CAUSE-PA, et al. v. Pennsylvania Public Utility Commission (120 A.3d 1087), the Commonwealth Court held that the Commission had the authority under the Choice Act to implement PPL’s CAP-SOP, that substantial evidence supported the Commission’s determination to implement the CAP-SOP, and that the CAP-SOP did not result in governmental slamming. 

Crowne Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission

No. 697 C.D. 2017,  188 A.3d 617, decided June 7, 2018

The Court held that Distributed Antenna System (DAS) networks are public utilities under the Pennsylvania Public Utility Code and reversed the Commission’s interpretation of the definition of “public utility.”

Third Quarter

Deree J. Norman, Petitioner v. Pennsylvania Public Utility Commission

No. 1053 C.D. 2017, 191 A.3d 101, decided, July 12, 2018

Mr. Norman, pro se, alleged that PECO was threatening termination of service, and that there were incorrect charges on his bills resulting from his belief that PECO was manipulating his electric usage via algorithms. The Commission concluded that Norman's exceptions lacked merit because his evidence did not establish that PECO manipulated the consumption data to create his service invoices. Mr. Norman appealed.

On appeal, Mr. Norman claimed (1) that the ALJ's factual findings, adopted by the Commission, were not supported by substantial evidence; (2) that the ALJ erred in failing to declare a mistrial when PECO's counsel failed to provide its witness with Norman's exhibits; and (3) that the ALJ erred by granting PECO a continuance and denying his motion for sanctions against PECO's counsel.  The Commonwealth Court affirmed the Commission’s denial of Mr. Norman’s complaint. 

Fourth Quarter

Tanya J. McCloskey, Acting Consumer Advocate v. Pennsylvania Public Utility Commission

No. 1624 C.D. 2017, 195 A.3d 1055, decided October 11, 2018

Aqua Pennsylvania Wastewater, Inc. filed an application with the Commission under Sections 1329 and 1102 of the Public Utility Code, for the approval of the acquisition of the wastewater system assets of New Garden Township and the New Garden Sewer Authority (collectively, New Garden), a certificate of public convenience to furnish the wastewater service to the public in the Authority's service area, as well as the approval of the ratemaking rate base based on the acquisition price and costs for the New Garden wastewater system assets. The Commission concluded that Aqua proved that the acquisition would affirmatively benefit the public, approved a $29.5 million ratemaking rate base for the New Garden system, and directed that a Certificate be issued to Aqua for New Garden's previous service area. The Office of Consumer Advocate (OCA) appealed, alleging that the Commission did not address the impact that the transaction would have on the rates of Aqua's existing ratepayers and that the Commission’s reasons for concluding that there was a public benefit were not substantial.

The Commonwealth Court found that by approving the sale and then putting off the consideration of the impact on rates to a later rate base proceeding, the Commission could not have done the balancing test required by Section 1102 of the Code to weigh all the factors for and against the transaction, including the impact on rates, to determine if there was a substantial public benefit.  Therefore, the Court remanded the matter to the Commission to make that determination, including the propriety of the rate restriction on New Garden ratepayers set forth in the APA. The Court also noted that because a rate base determination is fundamental to a determination of rates, individualized notice has to be given to all ratepayers of the proposed sale as well as an opportunity for them to participate in the Section 1329 proceeding. Therefore, the Court vacated the Commission's order, directed it to provide notice to all ratepayers in accordance with 52 Pa. Code § 53.45, and receive additional evidence from ratepayers regarding the acquisition and then enter a new order consistent with the Court’s decision.

Bucks County Services, Inc., et al. v. Philadelphia Parking Authority

8 EAP 2017 and 9 EAP 2017, 195 A.3d 218 (Pa. 2018), decided October 17, 2018

The Philadelphia Parking Authority (PPA) and the Commission entered into a Jurisdictional Agreement concerning partial authority taxi cabs. Bucks County Services, Inc. filed a Petition for Review in the Commonwealth Court's original jurisdiction, challenging PPA's regulation of partial rights taxicabs and seeking, in part, declaratory and injunctive relief.  The Commonwealth Court issued an opinion and order invalidating the jurisdictional agreement between PPA and Commission and concluded that certain PPA regulations were invalid and unenforceable as to partial rights taxicabs operating in the City of Philadelphia. The PPA and Commission appealed to the Supreme Court of Pennsylvania.

The Supreme Court reversed in part and affirmed in part the Commonwealth Court's order, holding that the Commonwealth Court did not err in determining the regulations were unreasonable, but erred in concluding the Jurisdictional Agreement violates appellees' substantive due process rights.

Snyder Brothers, Inc. v. Pennsylvania Public Utility Commission 

Nos. 47 and 48 WAP 2017, 198 A.3d 1056, decided December 28, 2018

This case arose from a dispute between the Commission and natural gas producers over whether natural gas from certain vertical wells were subject to assessment of the yearly impact fee established by Chapter 23 of the Oil and Gas Act (known as “Act 13"). The vertical wells that were the subject of this proceeding utilize the hydraulic fracturing process, colloquially referred to as "fracking," to extract natural gas through a vertical well bore from the underlying geologic formation known as the Marcellus Shale.

The main question of this case was whether, under Act 13, an impact fee will be assessed whenever a vertical well's production exceeds an average of 90,000 cubic feet of natural gas per day for even one month of the year (the Commission’s position), or whether the well must exceed this production threshold in every month of the year, for the fee to be imposed (the natural gas producers’ position).  The Supreme Court concluded that, under the relevant provisions of Act 13, the impact fee will be imposed on such wells if their production exceeds 90,000 cubic feet of natural gas per day for even one month of the year, thereby affirming the Commission’s order.