2005

First Quarter

City Council of Philadelphia v. Commonwealth and Pa. PUC

No. 34 M.D. 2000, (Pa. Cmwlth. 2005) (filed Feb. 18, 2005). 
In an unreported memorandum opinion, Commonwealth Court sustained the preliminary objection of the PUC and dismissed the PUC from the action. Moreover, the decision was entered without prejudice to permit the City Council of Philadelphia to amend its Petition for Review in order to properly designate a “Commonwealth party” as a defendant. The City of Philadelphia supplies natural gas to residential and commercial customers within the City through Philadelphia Natural Gas Works (PGW). Prior to the enactment of the Gas Choice Act, the Philadelphia Gas Commission exercised regulatory control over PGW. However, the Natural Gas Choice and Competition Act, 66 Pa. C.S. §§2201-2212, (Gas Choice Act), effective July 1, 2000 , brought City-owned natural gas operations, including PGW, under the PUC’s jurisdiction.

Petitioners, the City Council and certain of its members, filed an action against respondents, the Commonwealth and the PUC, seeking a declaration that the Gas Choice Act was unconstitutional on the basis that it impermissibly restricted the City’s authority under its Home Rule Charter and unlawfully impaired certain contracts. The Commonwealth and the PUC filed preliminary objections arguing that there was no ripe controversy between the parties. The PUC also asserted that it was not an indispensable party to the action and, therefore, should be dismissed from the action. The Court held that the PUC was not an indispensable party to the City’s action. In reaching its decision, the Court questioned whether the PUC had a right or interest related to the claim; found that the PUC’s duty was not essential to the merits of the issue; and that because the City’s claim was an attack on the validity of the Gas Choice Act with no specific relief sought against the PUC, achieving justice was not dependent on the PUC’s presence. The Court also held that in the absence of the PUC as a party, the petitioners had failed to properly designate a “Commonwealth party” as a defendant. As such, the Court entered the decision without prejudice to permit further amendment by the City.

Chester Water Auth. v. Pa. PUC

No. 108 MAP 2004, No. 109 MAP 2004, 2005 Pa. LEXIS 328 (Pa. 2005) (filed Feb. 23, 2005). 
The Pennsylvania Supreme Court reversed the decision of the Commonwealth Court and remanded the matter for reinstatement of the PUC’s decision. Appellants, the PUC and Philadelphia Suburban Water Company (Philadelphia Suburban), appealed from an order of the Commonwealth Court that remanded a decision by the PUC approving Philadelphia Suburban’s application for a certificate of public convenience. The PUC granted Philadephia Suburban’s application to provide service to a new residential development. Chester Water Authority protested the application and argued that its ability to provide service at substantially lower rates would better serve the public interest. The protest was decided by judgment on the pleadings, and the certificate was issued without a hearing. Commonwealth Court found that the protest raised material issues and that an evidentiary hearing was warranted on Chester Water Authority’s allegations of lower rates, closer proximity, and developer preference.

On appeal, the PUC argued that the protest and the certification decision implicated solely questions of law, policy, and/or discretion that did not require a hearing. The Court stated that Section 1103(b) of the Public Utility Code allows the PUC to exercise administrative discretion regarding whether to hold hearings on certificates of public convenience applications if no disputed material facts exist. The Court went on to hold that the PUC did not abuse its discretion in this case. First, the Court determined that the PUC has the discretion to give little weight to the fitness of or rates charged by a municipal authority, such as Chester Water Authority, seeking to thwart a jurisdictional utility’s efforts to obtain regulatory approval. Second, the Court determined that because Philadelphia Suburban presented uncontested averments of its fitness to provide service, the PUC properly exercised its discretion in granting the certificate without a hearing on the protest.

Norfolk Southern Railway Co. and Pennsylvania Lines LLC v. Pa. PUC

No. 1790 C.D. 2004, 2005 Pa. Commw. LEXIS 68 (Pa. Cmwlth. 2005) (filed Feb. 25, 2005).
Commonwealth Court vacated the decision of the PUC granting the application of the City of Pittsburgh and remanded the case to the PUC. Norfolk Southern Railway Company (Norfolk Southern) appealed the decision of the PUC that granted the application of the City of Pittsburgh for approval of the alteration of three railroad crossings over the tracks operated by Norfolk Southern in Pittsburgh, with the City paying for the initial cost of the alterations and Norfolk Southern paying for the initial cost to maintain the substructures, necessary supports, and superstructures of the structures in a safe and satisfactory condition. The City’s application stated that the railroad crossing bridges had not been properly maintained, were dilapidated, and that Norfolk Southern now sought to alter the bridges by increasing their heights to 23 feet, even though 52 Pa. Code §33.121 only allows overhead clearance above railroad tracks to 22 feet. Norfolk Southern filed a protest to the application, arguing that only a carrier could file an application for an exemption from overhead clearance pursuant to 52 Pa. Code §33.127(b). Norfolk Southern also argued that the PUC did not have authority to grant an exemption that interfered with its operations because any such regulation was pre-empted by the Interstate Commerce Commission Termination Act, 49 U.S.C. §10501(b).

When the PUC granted the City’s application and determined that Norfolk Southern’s planned alteration would not be allowed to violate the 22-foot clearance height requirement, Norfolk Southern appealed to the Commonwealth Court . The Court initially held that Section 2702(b) of the Public Utility Code gives the PUC exclusive jurisdiction to order the construction, reconstruction, alteration, repair, protection, suspension, or abolition of a rail highway crossing. Section 2704 of the Code “gives the PUC the authority to determine the costs of construction and alteration of a crossing and requires that the costs be borne and paid by the municipal authority in such proper proportions as the PUC may determine after notice and a hearing.” Moreover, the PUC did not improperly make a ruling regarding whether the City or the railroad owned the bridges, although it mentioned ownership briefly in its decision. However, the PUC did not have the authority to waive the 22-foot clearance requirement without making proper findings. Accordingly, this portion of the PUC’s decision was vacated, and the case was remanded to the PUC for the purpose of determining how the 22 foot clearance would be achieved in accordance with the Court’s opinion.

Popowsky v. Pa. PUC

No. 2497 C.D. 2003, 2005 Pa. Commw. LEXIS 137 (Pa. Cmwlth. 2005) (filed Mar. 14, 2005).
Commonwealth Court reversed the decision of the PUC that approved a surcharge proposed by Pennsylvania-American Water Company (PAWC) as an amendment to its tariff for wastewater collection service. PAWC proposed the surcharge as a mechanism for funding infrastructure improvements to its wastewater collection systems. The Office of Consumer Advocate contended that any rate increase occasioned by PAWC’s investment in its wastewater systems should not be automatic, but should be established in a base rate proceeding. The PUC determined that Section 1307(a) of the Public Utility Code allowed for the surcharge. Commonwealth Court reversed the PUC’s decisions for several reasons. First, PAWC’s surcharge would have been used to recover capital costs for new facilities, and Section 1315 of the Code requires a showing that facilities are “used and useful” prior to recovering the capital costs. Because a Section 1307(a) surcharge provided no opportunity for such a showing, a surcharge could be used to fund capital improvements. The PUC's approval of the surcharge under Section 1307(a) would allow the utility to recover its capital expenditures with only an initial and cursory review. Moreover, the surcharge was not authorized by Section 1307(g) of the Code because that section dealt only with projects involving the distribution of water. To recover the costs for the improvements, the utility was required to file a base rate case pursuant to Section 1308 of the Code.

The dissenting opinion filed by Judge Simpson, joined by President Judge Colins, asserts that the plain language of the “general rule,” Section 1307(a) of the Code, grants the PUC authority to approve surcharges, such as the one the PUC approved in the instant case. The judge disagrees with the majority’s conclusion that case law limits the breadth of the “general rule,” necessitating the conclusion that as so limited it cannot authorize the surcharge here. The judge believes that the PUC’s decision should have been affirmed.

Second Quarter

Choice Cab Co. Inc. v. Pa. PUC

No. 1700 C.D. 2004 (Pa. Cmwlth. 2005) (filed Apr. 1, 2005).
In an unreported memorandum opinion, Commonwealth Court affirmed the decision of the PUC that granted the Motion for Sanctions filed by Protestant Cultural Studies Academy, Inc. based on the taxicab company’s failure to timely answer interrogatories and dismissed the taxicab company’s application for airport transfer service. On appeal, the taxicab company asserted that PUC erred as a matter of law and abused its discretion in dismissing the application.

The Court rejected the taxicab company’s arguments that the PUC erred as a matter of law for several reasons. First, the Court found that the Protestant was under no duty, pursuant to the Public Utility Code or the Commission’s regulations, to seek an order compelling discovery prior to filing its Motion for Sanctions. Second, the Court determined that nothing in the Prehearing Order in the proceeding before the Administrative Law Judge could be read, expressly or impliedly, to address formal discovery requests made pursuant to the applicable discovery regulations, to supercede or replace the regulations, or to excuse any parties’ noncompliance with the regulations. Third, the Court found that the taxicab company’s letter, in which the company expressed its intention to provide answers to the interrogatories seventy days beyond the mandated response date, offered no response to the merits of the Motion for Sanctions. Moreover, the letter was not properly filed with the PUC as an Answer to the Motion. Finally, the Court held that the PUC correctly relied on its authority in the regulations in dismissing the application due to the taxicab company’s prolonged and unexplained failure to respond to the valid discovery requests.

The Court additionally rejected the taxicab company’s arguments that the PUC abused its discretion. The Court held that its previous decisions holding that the PUC did not abuse its discretion in accepting untimely filings could not be read to imply that acceptance of untimely filings is required in all instances. Such a construal of the Court’s previous decisions would be contrary to the discretion granted to the PUC under Sections 1.2, 5.371, and 5.372 of the regulations. Moreover, the taxicab company failed to produce, to the PUC’s and the Court’s satisfaction, meritorious justification for its untimely response. Accordingly, the Court found that the PUC properly exercised the discretion granted to it under the applicable rules and regulations.

Pennsylvania Carrier’s Coalition v. Pa. PUC

No. 170 M.D. 2005 (Pa. Cmwlth. 2005) (filed May 3, 2005).
In an unreported memorandum opinion, Commonwealth Court denied Petitioners’ request for a stay of the March 23, 2005 Order of the PUC that, pursuant to a proposed new tariff submitted by Verizon, tentatively established a policy that restricted access to Verizon’s UNE-P. In its tentative order, the PUC acknowledged that the policy would result in a modification of the policy previously adopted in its 1999 “Global Order.” In that 1999 order the PUC had required existing or incumbent carriers (ILECs) to allow new or competing carriers (CLECs) access to UNE-P for residential and small business customers. The PUC indicated that its tentative order was issued in response to the FCC’s nationwide bar on access to UNE-P, and that it had granted an emergency order that mitigated the harm to Petitioners.

Petitioners filed the present action, requesting a stay of the March 23 tentative order pending a hearing. The Court found that the Petitioners and intervenor, Office of Consumer Advocate, did not show irreparable harm in their testimony or argument by the speculative assertion that the recent tariff amendment would impact anything other than their profitability, at least in the short term. The Court found that as to the consumer/public interest, there was no evidence that temporary loss of profitability by the CLECs would substantially impact the consumer. The Court also found that the tariff amendment was not a new order entered by the PUC but was in response to a binding federal amendment. Thus, the Court determined that even if a hearing were held before the issuance of the order it would have been, given the exigent circumstances, an elevation of form over substance. Moreover, the Court held that Petitioners’ probability of success after a full hearing was remote, citing to Green Mountain , and if the Court granted the requested interim relief, it could be enjoined by the federal courts.

Norfolk Southern Railway Co. v. Pa. PUC

No. 2342 C.D. 2004, 2005 Pa. Commw. LEXIS 307 (Pa. Cmwlth. 2005) (filed June 10, 2005).
Commonwealth Court affirmed the decision of the PUC that (1) denied Norfolk Southern Railway Co.’s (Norfolk) exceptions to the recommended decision of the Administrative Law Judge to grant the complaint filed against Norfolk by Harmar Township; (2) denied Norfolk’s motion to dismiss the complaint for lack of subject matter jurisdiction; and (3) required Norfolk, at its sole cost and expense, to repair and maintain an at-grade, pedestrian railway crossing located in the Township along Norfolk’s right of way. The railroad's predecessor, under a 1930 Order from PUC's predecessor, the Public Service Commission (PSC), was directed to alter a vehicular crossing to a pedestrian crossing and to maintain the altered crossing. The Township filed a complaint with the PUC alleging that Norfolk had failed to maintain the crossing in compliance with the 1930 Order. The railroad argued that the PUC lacked current jurisdiction over a pedestrian crossing and that any prior assertion of jurisdiction and assignment of maintenance responsibilities by the PSC was without effect. The ALJ found that the 1930 Order remained valid and recommended its enforcement, and the PUC adopted the ALJ’s recommendation.

Commonwealth Court held that the PUC retains the authority to enforce the 1930 Order. Although the statute giving the PSC the authority to issue the 1930 Order had been repealed, there is express statutory language indicating that the Order remained valid since it was not vacated or modified by the PUC. The Court found that the PUC had the authority to enforce orders entered by the PSC. Moreover, even if the 1930 Order was invalid, the time for appeal had long since passed, and the validity of the Order was entitled to res judicata effect. Finally, the Court held that under Section 2702(b) of the Public Utility Code, the PUC had the authority to order the railroad to control the vegetation within 200 feet of the crossing.

The dissenting opinion filed by Judge Cohn Jubelirer concludes that the PUC does not have current jurisdiction over the crossing. The judge disagrees with the majority’s conclusion that due to various statutory provisions transferring the powers and duties of the PSC to the PUC, the PUC currently has jurisdiction over a pedestrian-only crossing. The judge concluded that with the passage of the Public Utility Law, the PUC lost jurisdiction over any jurisdiction it may have held formerly over a pedestrian-only crossing because the subject crossing did not involve a “highway” as that term was defined. Moreover, Section 2702(b) did not apply to the instant case because there was no reasonable evidence that “motorists” use the crossing.

Third Quarter

UGI Utilities, Inc. – Gas Division v. Pa. PUC

No. 1656 C.D. 2004, 2005 Pa. Commw. LEXIS 341 (Pa. Cmwlth. 2005) (filed July 7, 2005)
The Commonwealth Court affirmed the Commission’s order, which adopted a portion of the recommended decision of the Administrative Law Judge modifying the financial security requirement UGI imposed on Shipley Energy Company, a natural gas supplier which purchases natural gas from UGI, then sells the gas to its customers. On appeal, UGI argued that the Commission incorrectly interpreted 66 Pa.C.S. § 2208(c)(1)(i) in its conclusion that the proper approach for determining UGI’s financial security standard was to establish a range of exposure, and then establish a reasonable level of exposure within that range. UGI had required Shipley to maintain a $10.2 million level of financial security to operate on its system. Shipley requested an order reducing its required level of financial security; prohibiting UGI from using potential penalties as a basis for any security requirement; and requiring UGI to modify its supplier tariff to comply with Commission regulations.

The Commonwealth Court concluded that although 66 Pa.C.S. § 2202 required the Commission to consider peak and seasonal demands, as well extreme conditions and emergencies, UGI’s requirements were unrealistic and extreme because UGI based its calculations on a worse case scenario, contrary to the intention of the statute. Finally, UGI failed to present evidence that supported its proposition that its penalties were related to the financial exposure it would incur in the event of Shipley’s default or bankruptcy, which is a necessary requirement for determining financial security under 66 Pa.C.S. § 2208(c)(1). For these reasons, the court found that the Commission did not abuse its discretion by not requiring Shipley to provide financial security for penalties.

Equitable Gas Company, et al. v. Pa. PUC

No. 680 M.D. 2004, 2005 Pa. Commw. LEXIS 357 ( Pa. Cmwlth. 2005)(filed July 13, 2005)
The Commonwealth Court granted the Commission’s application for summary relief and denied the natural gas distribution companies’ cross-application for partial summary relief. Several natural gas distribution companies sought to recover portions of their general assessment payments during fiscal years 2002-2003, 2003-2004, and 2004-2005 pursuant to 66 Pa.C.S. § 510(b). Under 66 Pa.C.S. § 510(a), public utilities are required to pay assessments to cover the agency’s estimated costs of administering the Code. Direct costs are assessed to the public utilities within a specific utility group while indirect costs are spread among all public utility groups. It was undisputed that the distribution companies are public utilities in the gas utility group and subject to direct cost assessment under the Code. However, the Natural Gas Choice and Competition Act permits retail customers to purchase gas from independent suppliers, which are not public utilities for purposes of assessment under Section 510. Since the Commission incurs expenses in regulating these independent suppliers, the Commission assessed them as direct costs. The plaintiffs-distribution companies argued that the Court should find them to be indirect costs.

 The Commonwealth Court held that 66 Pa.C.S. § 510(b)(1) evidenced a clear intent to directly allocate the costs of regulation to the industry which created the need for the regulatory activity. The Court found that the Commission had properly allocated direct costs to the gas companies because the costs of regulating natural gas suppliers were directly related to the gas industry.

The Municipal Authority of the Township of Robinson v. Pa. PUC

No. 2008 C.D. 2005 ( Pa. Cmwlth. 2005)(filed July 15, 2005)
In an unreported memorandum opinion, the Commonwealth Court affirmed the Commission’s order denying the exceptions filed by the Municipal Authority of the Township of Robinson (MATR) and the Pennsylvania Municipal Authorities Association to the Initial Decision of the Administrative Law Judge; adopted the Decision; and, dismissed MATR’s complaint against the Pennsylvania-America Water Company (Water Company). In 1983, MATR and the Western Allegheny County Municipal Authority (WACMA) entered into a 20-year bulk water purchase agreement whereby WACMA agreed to purchase a minimum of 85% of its total water needs from MATR in any given year. However, in 1998, the parties reached an impasse on two key issues when they attempted to renegotiate the 1983 agreement: (1) the length of the contract, and (2) the required minimum percentage of water needs WACMA would be required to purchase from MATR. In January 2003, WACMA began negotiations with Water Company as an alternative supplier and entered in a water purchase agreement later that year. In response, MATR filed a complaint and petition for declaratory order asking the Commission to void that agreement as an unlawful exercise of the Rider DRS; to declare that any sales by Water Company to WACMA must be priced at “Class A Resale Rate”; and, to prohibit Water Company from beginning service pursuant to the 2003 agreement with WACMA. The ALJ denied the relief requested by MATR and the Commission issued an order and opinion adopting the ALJ’s decision.

On appeal, MATR argued that the Commission erred in interpreting the Rider DRS by exceeding its intended scope, and there was no evidence in the record to support the Commission’s finding that Water Company met the necessary conditions to invoke the Rider DRS. The Commonwealth Court agreed with the Commission’s finding that the Rider DRS could be used for the dual purpose of retaining and attracting incremental load based on a plain language reading and based on the proceedings leading up to its ratification. The Court also found that the Rider DRS made it clear that WACMA had a viable competitive alternative to service from Water Company and intended to select that alternative to the detriment of Water Company and its customers.

The dissenting opinion by Judge McGinley disagreed and believed that the Rider DRS was applicable only when Water Company sought to prevent the loss of an existing customer to an alternative competitor by offering a lower tariff rate, which was not present in the case. The dissent also found the Commission’s interpretation of the Rider DRS to allow Water Company to use the Rider DRS to compete for another provider’s customer resulted in an unlevel playing field. The judge would have reversed the Commission’s order and voided the agreement between Water Company and WACMA.

Verizon Pa., Inc. v. Pa. PUC, et al.

No. 04-3866, 2005 U.S. Dist. LEXIS 15887 (filed August 3, 2005)
The United States District Court for the Eastern District of Pennsylvania granted the Commission’s motions for summary judgment and affirmed the rates set by the Commission, and denied Verizon’s and MCI’s motions for summary judgment. Verizon challenged the Commission’s ordering setting the rates that Verizon, the incumbent carrier, must charge competitors for access to its local telephone network components. MCI and AT&T, two such competing carriers who leased local network components from Verizon, intervened as defendants and also filed motions for summary judgment. Verizon alleged that the Commission imposed illegal rates for the competing carriers’ lease of unbundled networks, which was unsupported by substantial record evidence and confiscatory. MCI argued that the Commission’s determinations should be reversed because the Commission improperly based unbundled network elements (UNE) rates on Verizon’s actual or overstated costs and because it failed to support its conclusion with substantial record evidence.

The Telecommunications Act of 1996 imposed duties upon incumbent local exchange carriers (ILEC’s, such as Verizon), foremost of which is to share their networks with competing local exchange carriers (CLEC’s, such as MCI). Specifically, ILEC’s must lease certain components to CLEC’s on an unbundled basis and can only charge just, reasonable, nondiscriminatory rates based on the cost of providing the interconnection or network element. Pursuant to its authority under the 1996 Act, the FCC may promulgate rules and regulations to implement the Act. The FCC set forth a total element long run incremental cost (TELRIC) methodology for use by state commissions in setting UNE rates.

The District Court first considered MCI’s claim that the Commission’s adoption of Verizon’s recurring costs model violated TELRIC because it was illegally based on the incumbent’s embedded network. The Court disagreed and found that TELRIC does not mandate that state commissions apply a rigid formula; it simply provides a flexible framework. The Court then considered the parties challenges to the Commission’s modifications to Verizon’s recurring costs model. The Court held that this model did not violate TELRIC because the Commission’s modifications eliminated embedded inefficiencies. The Court found that the modifications were supported by substantial record evidence and complied with FCC regulations. First, the modifications reduced the cost of capital by adopting a single-stage model that assumed Verizon's constant growth rate and adopted longer, FCC-developed regulatory depreciation lives and a higher mixed switch discount. Furthermore, the record supported adoption of the competing carriers' forward-looking model for nonrecurring costs and an operations support systems access charge based on actual, embedded expenses. Finally, the Court held that Verizon failed to show evidence of confiscation and declined to remand the question of whether the rates constituted a taking, since they were affirmed as consistent with the Telecommunications Act of 1996.

Richard M. Campbell v. Pa. PUC

No. 839 C.D. 2005 ( Pa. Cmwlth. 2005)(filed September 25, 2005)
In an unreported memorandum opinion, the Commonwealth Court affirmed the Commission’s order granting exceptions filed by Metropolitan Edison Company (Met-Ed) to the Administrative Law Judge’s decision and dismissed the complaint filed by Campbell against Met-Ed. Campbell filed the complaint with the Commission against Met-Ed alleging that Med-Ed installed a pole line that created a safety hazard. The ALJ sustained the complaint, ordered removal of the pole line, and Met-Ed filed exceptions. After concluding the record was insufficient, the Commission remanded the matter. After further hearings, the ALJ again sustained the complaint and Met-Ed filed exceptions. The PUC granted the exceptions and dismissed the complaint.

In granting Met-Ed’s exceptions, the Commission explained that: (1) Campbell failed to establish a prima facie case that the pole line was unsafe; and (2) even if Campbell had established a prima facie case, Met-Ed’s evidence was more than co-equal value and weight to refute Campbell’s evidence. The Commission gave little weight to the testimony of witnesses regarding the safety of the pole line because the witnesses were not familiar with the location or experts in that area, even though the ALJ gave much weight to their testimony. The Commonwealth Court held that the Commission was not bound by the ALJ’s weighing of the evidence because the Commission, not the ALJ, is the ultimate fact finder. Therefore, the Commission decides the weight and credibility of the evidence presented and accordingly, the Court affirmed the Commission’s decision.

Fourth Quarter

Family Car Service, Inc. v. Pa. PUC

No. 404 C.D. 2005 ( Pa. Cmwlth. 2005)(filed Dec. 30, 2005)
In an unreported memorandum opinion, the Commonwealth Court reversed the Commission’s Reconsideration Order and remanded the matter to the Commission to address Petitioner’s request to reinstate its license. Petitioner, Family Car Service, Inc., a certified common-carrier limousine service provider, challenged the Commission’s decision, which resulted in Petitioner’s loss of its Certificate of Public Convenience. The Commission also issued an Order denying Family Car Service’s Petition for Reinstatement of its Certificate, and then another Order denying its Petition for Reconsideration. 

The Commission’s Bureau of Transportation (BTS) filed a Complaint (C0303) against the Petitioners for an outstanding assessment and then revoked its Certificate after Petitioner failed to respond to the Complaint. BTS filed another Complaint (C0401) alleging that Petitioner operated for six days while under suspension for failing to maintain evidence of insurance on file with the Commission, which Petitioner also failed to respond to. Petitioner filed a Petition for Reinstatement of its Certificate, which the Commission denied based on Petitioner’s history of repeat violations and Petitioners failure to offer adequate explanations for failure to pay its assessments. The Commission found these factors outweighed the fact that there was a short period of time between the revocation and filing of Reinstatement Petition, and the fact that Petitioner eventually paid its fees and penalties. Petitioner filed a Petition for Reconsideration of the Denial, which the Commission denied, finding that Petitioner’s deficient internal administrative procedures did not excuse Petitioner’s noncompliance. The Commission did not address the fact that its Reinstatement Denial at C0303 had been filed at a different docket number, C0401. 

In its appeal of this Denial, the Commonwealth Court agreed with Petitioner that the Commission acted arbitrarily and capriciously when it failed to reconsider an Order it filed in one case, when that Order addressed a petition filed in a different case. The Court also agreed with the Petitioner that the Commission erred in both issuing the Order denying reinstatement in C0303, when the Reinstatement Petition has not been filed in that docket but had been filed in C0401. Accordingly, the Court reversed and remanded the case for appropriate disposition.