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First Quarter

Robinson Tp., Washington County, et al. v. Com. of Pa

Pa. PUC, et al., 2014 WL 222999 (Pa. 2014) (Filed January 21, 2014)

The Pennsylvania Supreme Court issued a per curiam opinion affirming the Commonwealth Court that the President Pro Tempore of the State Senate and the Speaker of the Pennsylvania House of Representatives (the legislators) lacked standing to intervene.

On review, the Court cited Fumo v. City of Philadelphia, 972 A.2d 487 (Pa. 2009), wherein the Court held that members of the General Assembly have sufficient interest to participate in a legal action in their official capacity “where there is a discernible and palpable infringement on their authority as legislators.”  However, pursuant to Fumo, legislators have no legal interest “in actions seeking redress for a general grievance about the correctness of governmental conduct.”  Id. at 501.

In Robinson Tp., the legislators’ interest in intervening did not implicate either (1) a defense of the power or authority or their offices; or (2) a defense of the potency of their right to vote.  Both of these reasons were previously recognized as grounds for members of the General Assembly to have sufficient interest to participate in a legal action.  The legislators in Robinson Tp. sought only to offer their perspective on the correctness of their conduct, i.e., that the General Assembly did not violate the substantive and procedural strictures of the Pennsylvania Constitution by enacting Act 13.  Their interest was insufficient to support party standing.

AT&T Corp. v. Core Communications, Inc.

12-CV-07157, 2014 WL 348620 (E.D. Pa. Jan. 30, 2014)
(Judgment Order entered March 10, 2014)

In a memorandum and order, the Eastern District Court(District Court) granted AT&T’s Motion for Preliminary Injunction which, following the parties’ agreement during oral argument that the record was complete, decided the case on the merits.  This case involves the exchange of dial-up, ISP-bound traffic between AT&T and Core (both Pennsylvania CLECs), and AT&T’s refusal to pay Core for terminating such traffic.

Between 2004 and 2009, AT&T used Core facilities to serve AT&T customers.  Core did not bill AT&T for these calls until 2008, at which time it sought payment according to Core’s long-distance tariff filed with the Pa PUC.  Core and AT&T have never had an agreement governing the exchange of this traffic and AT&T claimed that, under federal law, it was under no obligation to compensate Core for the use of Core’s facilities.

On May 19, 2009, Core filed a formal complaint with the Pa PUC to compel payment from AT&T.  The Pa PUC resolved the complaint, in its December 5, 2012 Order, by applying the FCC-established rate of $0.0007 per minute of use and directing AT&T to provide Core with approximately $250,000 in compensation.

On December 21, 2012, AT&T sought federal injunctive relief from that determination in the District Court.  AT&T set forth five independent reasons that the Pa PUC orders (December 5, 2012 and August 15, 2012 (order on reconsideration)) violated federal law:  (1) the Pa PUC did not have jurisdiction to resolve the dispute; (2) the Pa PUC orders violate 47 U.S.C. § 203 by awarding charges at a rate not contained any tariff or contract (the long-distance tariff was inapplicable) and, therefore, the rate was “unjust or unreasonable” in violation of Section 201; (3) the Pa PUC orders violate 47 U.S.C. § 251(b)(5) by allowing Core to recover compensation without a reciprocal compensation arrangement; (4) the Pa PUC orders impermissibly engaged in retroactive ratemaking by ordering AT&T to pay a rate not set forth in any contract or tariff for a period extending back to 2005; and (5) the Pa PUC orders impermissibly applied a four-year state law statute of limitations.

The Commission argued that the Pa PUC and other State commissions have actively adjudicated intercarrier compensation disputes under the premises of applicable federal and State law and that the FCC has not taken a position on the jurisdiction of State commissions to adjudicate such disputes.  Also, the Pa PUC argued that it did not establish a rate to be applied to the traffic at issue, but only applied a rate under the FCC-based scheme.

The District Court resolved the dispute based on AT&T’s first argument by holding that the FCC has exclusive jurisdiction to set rates for ISP-bound traffic, which is interstate communication, except for the state-delegated authority in 47 U.S.C. § 252 (regarding State commissions ability to participate in the mediation, negotiation, or arbitration of interconnection agreements).  Essentially, the Court decided that the FCC preemption of rate setting for ISP-bound traffic equated to field preemption of state jurisdiction over all aspects of CLEC interconnection disputes involving that traffic, except under 47 U.S.C. § 252.  The District Court acknowledged that the FCC has not specifically addressed whether State commissions have jurisdiction outside of Section 252 to resolve disputes regarding intercarrier compensations for ISP-bound traffic, but that the FCC has declared its exclusive jurisdiction over interstate communication generally in several FCC Orders.

The District Court never reached the underlying intercarrier compensation dispute as it concluded that neither the Court nor the Pa PUC had jurisdiction to award Core compensation.  While the Pa PUC requested time to petition the FCC for guidance as it appeared that only the FCC had jurisdiction, the District Court denied that request on March 10, 2014.

The Pa PUC and Core appealed the District Court decision, which is currently pending before the Third Circuit Court of Appeals.  Also, the Pa PUC plans to petition the FCC for Declaratory Order regarding whether the States are entitled to adjudicate intercarrier compensation disputes involving dial-up, ISP-bound traffic that is exchanged between telecommunications carriers with indirect interconnection.


Second Quarter

Norfolk Southern Railway Co. v. Pa. PUC

No. 2157 C.D. 2010 (Pa. Cmwlth. 2014) (Filed April 14, 2014)

The Commonwealth Court affirmed a Pa PUC order that denied Norfolk Southern Railway Company’s (Norfolk) exceptions to the recommended decision of a PUC Administrative Law Judge (ALJ).  This dispute stems from a 2003 Pa PUC directive that East Hempfield Township (Township) remove a deteriorated bridge that carried a local road above train tracks owned and used by Amtrak.  Norfolk has an easement and operating agreement with Amtrak that allows Norfolk to operate freight trains on the same tracks.  Upon removal of the bridge, Norfolk, the Township, Lancaster County, PennDOT, and Amtrak participated in a cost allocation proceeding, pursuant to 66 Pa. C.S. § 2704(a).

In its initial review of the Pa PUC’s cost allocation, the Commonwealth Court held that the Commission could not allocate costs to a transportation utility which regularly uses a crossing site in railroad operations but does not own real property or facilities there.  On review, the Supreme Court vacated the Commonwealth Court’s finding and held that a transportation utility need not own facilities at a rail-highway crossing to be a “concerned” party for purposes of the Pa PUC’s cost allocation jurisdiction authority, at least where the utility conducts regular operations at the crossing an may enforce an easement-based right of way.

On remand, the Commonwealth Court addressed Norfolk’s two exceptions which had not been decided earlier.  First, Norfolk contended that its freight operating agreement with Amtrak constituted a valid private cost allocation agreement, which would divest the Pa PUC of jurisdiction to allocate any of the bridge removal cost to Norfolk.  In support of its argument, Norfolk states that its payments to Amtrak under the operating agreement are intended to cover its fair share of all costs to operate on the line, including crossing maintenance.  Norfolk also asserted that an agreement does not need to relate to a specific crossing project to qualify as a cost allocation agreement and that the “doctrine of necessary implication” implies an agreement to cover these allocation costs.

The Pa PUC responded that in order to divest the Commission of jurisdiction to conduct a cost allocation, the private agreement must:  (1) be mutually agreed upon by all concerned parties;
(2) allocate the costs at issue; and, (3) require that costs allocated by paid pursuant to the agreement. 

The Court held that Norfolk’s operating agreement failed to qualify as a private cost allocation agreement for purposes of 66 Pa. C.S. § 2704.  The Court first determined that nowhere in the operating agreement did any party assume financial responsibility for the bridge removal.  Then, the Court held that Norfolk could not rely on the “doctrine of necessary implication” to defeat the express requirement that a private cost allocations agreement specifically address the crossing that is the subject of a Pa PUC proceeding.  Norfolk made no payments specifically attributable to the bridge removal.  Finally, a private cost allocation must be mutually agreed upon by all interested parties and none of the other interested parties were signatories to the operating agreement.

In its second exception, Norfolk contended that the Pa PUC failed to make a just and reasonable cost allocation to Norfolk and improperly considered the relevant factors laid out in Greene Twp. Bd. of Supervisors v. Pa. PUC, 668 A.2d 615 (Pa. Cmwlth. 1995), particularly that the ALJ failed to adequately consider which party was most responsible for the crossing’s deterioration and the subsequent bridge removal.  Also, Norfolk stated that the Commission wrongly allocated the cost to Norfolk because Amtrak has a federal exemption.

The Pa. PUC countered that the ALJ properly weighed relevant factors in the cost allocation analysis, and the Township and PennDOT asserted that Norfolk received a substantial benefit from the bridge.

The Court discerned no abuse of discretion in the Pa PUC’s determination and relied on the ALJ’s findings to hold that Norfolk derived a substantial benefit, both from the bridges existence and subsequent removal.  Thus, the Pa PUC’s allocation of 15% of the bridge removal to Norfolk was supported by the record, and was just and reasonable.


Pa. Communities Organizing for Change, Inc., v. Pa. PUC;

No. 635 C.D. 2012 (Pa. Cmwlth. 2014) (Filed April 10, 2014)

The Commonwealth Court, in an en banc proceeding, affirmed a PUC order that dismissed the challenge of Pennsylvania Communities Organizing for Change, Inc., d/b/a ACTION United, (ACTION or PCOC) that questioned how certain federal energy assistance funds were allocated.  The Pennsylvania Department of Public Welfare (DPW) administers the LIHEAP funds in PA but did not participate in the rate cases before the Commission or in the appellate challenge to the PUC decision. 

The case involves Columbia Gas’ consumer assistance program (CAP) and its interplay with the federal Low-Income Home Energy Assistance Program (LIHEAP).  The CAP customer is billed an asked to pay (ATP) amount that is discounted from the tariffed residential rate.  Columbia recovers the bulk of the difference between the ATP amounts and the tariff rate in its universal service plan rider (USP Rider) that is applied to residential non-CAP customers’ bills.

Prior to 2010, LIHEAP grants were applied to reduce the aggregate shortage resulting from the discounts afforded to CAP customers.  As of 2010, based on a change in the DPW state Plan, LIHEAP cash grants are applied to a CAP customer’s bill to further reduce the ATP amount.  As a result of a settlement in its rate case, Columbia increased the amount to be recovered from CAP customers rather than increasing the USP Rider. 

Columbia added a “plus” amount to each CAP customer’s bill.  Under Columbia’s CAP-Plus, CAP customers’ ATP amounts are determined through a two-step process:  (1) one of four CAP discounting options is selected for the customer to form a base amount; and (2) a “plus” amount (calculated by dividing the aggregate LIHEAP cash grant received by Columbia on behalf of LIHEAP customers who were also enrolled in CAP in the previous year by the total number of CAP customers) is added to each CAP customer’s monthly bill.  The “plus” amount is added to each CAP customer’s bill irrespective of whether the customer participates (or participated) in LIHEAP.  The LIHEAP customers who are not in CAP do not pay the Plus amount, but they do pay the full tariff rate for their energy usage plus the USF rider minus their LIHEAP grants.

In 2012, ACTION filed a formal protest in Columbia’s next rate case before the Pa PUC contending that CAP-Plus violates the Low-Income Home Energy Assistance Act (LIHEAA) by (1) treating LIHEAP grant recipients adversely by adding a “plus” amount to the bills of CAP customers whereas non-CAP customers are not assessed the additional fee; and (2) using a customer’s receipt or eligibility to receive a LIHEAP grant as a resource in determining the amount of the CAP payment.

The OCA countered ACTION’s argument with testimony that CAP customers receiving LIHEAP and CAP customers not receiving LIHEAP are treated identically and argued that the CAP-Plus program does not consider the amount of a LIHEAP grant in setting a customer’s ATP amount. 

The ALJ’s Recommended Decision (RD) found that the PUC is empowered to determine appropriate rates for energy, including charges such as the CAP-Plus charge and the USP Rider (i.e., the surcharge covering the CAP Credit).  The ALJ also determined that federal DHHS (which provided the LIHEAP funds to the various states) and DPW only had authority to dictate how LIHEAP funds are applied to a customer’s bill.

ACTION filed exceptions to the RD.  ACTION’s exceptions asserted:  (1) that LIHEAP recipients in CAP are treated adversely to LIHEAP recipients not in CAP; (2) that adding the “plus” amount to each CAP customer who receives LIHEAP had the effect of treating the LIHEAP grant as an available resource; and (3) that DPW’s authority over LIHEAP administration and oversight must be respected regarding the lawful integration of LIHEAP funds with CAP-Plus ratemaking and bill payment process.  The Commission denied the exceptions. 

ACTION then appealed to the Commonwealth Court.

In upholding the PUC order on appeal, the Court stated that ACTION erroneously compared CAP-Plus customers to CAP non-participating customers rather that comparing LIHEAP recipients to LIHEAP non-recipients.  LIHEAP non-recipients have no benefit conferred upon them that is not equally available to and conferred upon LIHEAP recipients, and receipt of LIHEAP is not a factor when Columbia Gas makes decisions regarding any CAP participant in administering its program.  Additionally, Columbia applies the entire LIHEAP grant to the ATP amount making the difference in the amount to pay between CAP participants and non-CAP participants a function of the CAP design, not of LIHEAP participation.  CAP customers are not worse off under CAP-Plus and any customer receiving a LIHEAP grant will devote fewer out-of-pocket dollars than had the customer not received the grant.

The Court also held that substantial evidence supported the PUC claim that CAP-Plus does not treat LIHEAP as a resource to its recipients in violation of the LIHEAA.  Finally, the Court held that the PUC had statutory authority, pursuant to 66 Pa. C.S. § 2203(8), to adopt a CAP-Plus tariff outlining the rates to be paid by low-income customers and providing how LIHEAP grants are to be applied because the PUC did not violate the LIHEAA as LIHEAP customers are not treated adversely and their grant is not considered as a resource.


Third Quarter

Robinson Twp., Washington County, et al. v. Com. of Pa

Pa. PUC, et al., 2014 WL 222999 (Pa. 2014) (Filed July 17, 2014)

The Pennsylvania Commonwealth Court issued an opinion on remand from the Pennsylvania Supreme Court: (1) enjoining the enforcement of Section 3302 of Act 13 as it relates to Chapter 33 of the Act and (2) enjoining Sections 3305, 3306, 3307, 3308 and 3309(a) of the Act in their entirety. As such, this opinion enjoins the Commission from completing any zoning ordinance reviews for compliance with the portions of Act 13 that were not declared unconstitutional by the Pennsylvania Supreme Court.     

With regard to Section 3302 (providing that no ordinances shall contain provisions which  impose requirements on the same features and/or same purposes as set forth in Chapters 32 and 33 of the Act), the Commonwealth Court found that the final sentence of Section 3302 is necessarily unconstitutional as the Supreme Court found the only substantive portions of Chapter 33 (Sections 3303 and 3304) are unconstitutional.  Therefore, the only remaining valid provisions of Section 3302 of the Act that are severed from the unconstitutional portions of the Act are those regarding Chapter 32’s regulation of oil and gas operations.  By this holding, the Commonwealth Court basically upheld the Huntley and Range Resources cases “same features/same purposes” preemption standards regarding the old Oil and Gas Act of 1984 (Chapter 32 of the Act).

With regard to Sections 3305 through 3309(a) (vesting the PUC and Commonwealth Court jurisdiction over the determination of whether local ordinances violate Act 13 and the power to impose sanctions), the Commonwealth Court reasoned that because the Supreme Court declared all of the substantive provisions contained in Chapter 33 of the Act (Sections 3303 and 3304) unconstitutional and unenforceable, the new statutory scheme (intending for uniform zoning
regulations and procedures) cannot be implemented.  As such, the Commonwealth Court provided that “ocal zoning matters will now be determined by the procedures set forth under the MPC and challenges to local ordinances that carry out a municipality’s constitutional environmental obligations. Because challenges to those ordinances must be brought in common pleas court, it would further frustrate the purpose of the Act in having a uniform procedure.”  Accordingly, the Commonwealth Court found that Sections 3305 to 3309 are not severable and enjoined in their entirety.

Germantown Cab Company v. PA. P.U.C.,

No. 1850 C.D. 2013 (Filed July 23, 2014)

The Commonwealth Court affirmed the Commission’s decision regarding the extent of its jurisdiction over taxicab companies with operating rights that include the City of Philadelphia.  The Petitioner (Germantown) holds a certificate of public convenience issued by the Commission to operate taxicab service outside Philadelphia.  Additionally, Germantown holds authority to operate in limited parts of Philadelphia. Germantown argued that the Commission has exclusive jurisdiction over all of its operations, including Philadelphia. The Commission disagreed with Germantown, finding that the Philadelphia Parking Authority (PPA) oversaw its operations in Philadelphia. 

The Commonwealth Court sustained the Commission’s order, finding that both the PUC (outside Philadelphia) and the PPA (in Philadelphia) oversaw Germantown’s operations.  In its decision, the Commonwealth Court found that Chapter 57 of the Parking Authorities Law, 53 Pa. C.S. §§ 5701-5745, clearly transferred oversight of Germantown’s Philadelphia operations to the PPA.  Germantown has filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which the Commission has opposed.  That Petition is awaiting decision.


Met Ed & Penelec v. Pa. Public Utility Commission

767 F.3d 335 (3rd Cir. Sep. 16, 2014)

The Third Circuit Court of Appeals affirmed the decision by the District Court in the Eastern District of Pennsylvania, which granted the PUC’s motion to dismiss on the grounds of issue preclusion. 

This case originated in 2008 when Met Ed and Penelec (the Companies) sought recovery of line loss costs charged by PJM, the interstate transmission grid operator, in their Transmission Service Charge (TSC) riders filed with the PUC. Since the expiration of the Companies’ transmission rate caps, they have used TSC riders to pass on to retail customers their FERC-approved transmission costs. “Line losses” represent the amount of energy lost between the generation facility and the delivery of that energy at its endpoint. To compensate for line losses, PJM must purchase additional energy from generation suppliers to make up those line losses and complete the transaction. In 2007, FERC ordered PJM to change its line loss billing methodology from average to marginal.  This, among other factors, resulted in a higher exposure of line losses to the Companies.

In the PUC proceeding below, the Companies argued that line losses were recoverable as federally-approved transmission costs and therefore, not subject to the cap on generation costs agreed to in its settlement to resolve the 1998 electric restructuring proceedings. On review, however, the PUC determined that, under the Companies’ restructuring agreements, line losses were billed as generation costs and, thus, subject to the Companies’ generation caps, which expired on December 31, 2010. The Companies appealed to the Commonwealth Court on statutory construction and constitutional preemption grounds, among others. In a unanimous en banc 8-0 decision, the Commonwealth Court affirmed the PUC order. 

The Companies filed petitions for review before the Supreme Court of Pennsylvania and the United States Supreme Court, both of which declined to hear the matter. While those appeals were pending, the Companies also filed a complaint in federal district court, alleging substantially the same constitutional violations and preemption claims as the ones before the Commonwealth Court. After briefing and oral argument, the District Court granted the PUC’s motion to dismiss the Amended Complaint on issue preclusion grounds. 

Met Ed and Penelec appealed the District Court decision to the Third Circuit Court of Appeals.

The Companies had argued that the Commonwealth Court decision was an extension of the legislative ratemaking process and should not be afforded preclusive effect. The Third Circuit disagreed and held that the Commonwealth Court acted in a judicial capacity when reviewing the PUC Order. Therefore, the Commonwealth Court’s decision is afforded preclusive effect and is a final judgment on the merits. 

The Court explained that Congress did not divest state utility commissions or state courts of jurisdiction to hear cases requiring adjudication of the scope of the Filed Rate Doctrine and federal preemption. The Third Circuit determined that the Commonwealth Court decision affirming the PUC’s classification of line loss costs for retail billing purposes was not a collateral attack on FERC’s approval of the marginal line loss methodology.

Ultimately, the Third Circuit concluded that the Companies were afforded a full and fair opportunity to litigate their claims surrounding the Filed Rate Doctrine, trapped costs, and preemption issues before the Commonwealth Court. The Court also explained that the Companies could have withdrawn their federal issues from the state proceedings instead of arguing those federal issues in state court.  Accordingly, the Third Circuit held that the Full Faith and Credit Act, 28 U.S.C. §1738, as applied through the common law principle of issue preclusion (formerly known as collateral estoppel), barred the Companies from relitigating in federal court. 

On October 15, 2014, a majority panel of Third Circuit judges denied the Companies’ petition for an en banc rehearing of the case. 

On February 12, 2015, the Companies filed a petition for writ of certiorari to the United States Supreme Court, seeking review of the Third Circuit decision. The petition is currently pending.


Fourth Quarter

Alderwoods, Inc. v. Duquesne Light Co.

No. 12 WAP 2013 -- A.3d --; (Pa. 2014) (Filed December 15, 2014)

The Pennsylvania Supreme Court affirmed an order of the Superior Court (entered July 27, 2012 at No. 1967 WDA 2010) reversing an order of the Court of Common Pleas of Allegheny County (entered Dec. 13, 2010 at No. GD-09-14720). 

Two of the issues raised by Duquesne Light Co. (Duquesne) on appeal were (1) whether the Superior Court erred in imposing upon electric utilities a burdensome and unprecedented duty to enter customers’ premises and inspect customers’ electrical facilities before restoring power after an outage and (2) whether the Superior Court overlooked the deleterious effects of its ruling upon public health and safety, in that requiring utilities to inspect customers’ premises before  restoring power will delay utilities’ efforts to restore power after storms and other outages. 

Concerned that imposing this new duty on electric utilities is burdensome and contrary to the public interest, the PUC and the Energy Association of Pennsylvania filed amicus curiae briefs in support of Duquesne. In a 4-2 majority opinion, the Supreme Court agreed with the legal position of Duquesne and its amici, finding that maintenance and inspection responsibilities generally are divided at the service point of electricity.  The service point is the location designated by the electric utility where the utility’s service supply lines terminate and the customer’s facilities for receiving service begin.  Accordingly, the Court explained that a utility does not have a freestanding duty to inspect customer-owned electrical equipment and services beyond the service point.  However, the Court elaborated on this general duty, based on its view of common law duties, holding that where the utility has “actual or constructive knowledge” of a dangerous condition impacting a customer’s electrical system, the utility has a duty to take reasonable measures to avert harm.   

The Court explained that a “dangerous condition” would include fallen and intermixed electrical lines proximate to the customer’s premises and that “reasonable measures” would include at least some form of warning as to the danger before restoring electric service.  The Court also acknowledged the important public benefit of timely electric service restoration and the efforts attendant to wide scale restoration, opining that utilities may deserve a degree of relief from exposure to the expense and uncertainties of tort litigation.  However, the Court contended that the General Assembly and not the Supreme Court would be the appropriate branch of government to grant utilities relief or immunity from certain common law duties. 

Justice Eakin and Justice Todd filed separate dissenting opinions.  Concerned that the Majority interfered with longstanding case law establishing that an electric service provider is not obligated to inspect a customer’s equipment and is not liable for related damages, Justice Eakin explained that the Majority’s failure to clearly outline and define the peripheries of this new duty is “not only unwise and generally unworkable, but also unwarranted.”  

Justice Todd found it inappropriate for the Majority to opine on any duty to warn, as only a question regarding the duty to inspect was raised on appeal. Accordingly, in light of the importance of providing clear guidance on an electric utility’s duties prior to service restoration, Justice Todd would have permitted additional briefing on the duty to warn issue.


Hess, et al. v. Pa. Public Utility Commission

No. 1370 C.D. 2013 (Filed December 22, 2014)

The Pennsylvania Commonwealth Court issued an opinion affirming the Pennsylvania Public Utility Commission’s (Commission) Order finding, inter alia, that PPL Electric Utilities Corporation’s (PPL) proposed Richfield-Dalmatia 69 kV transmission line and Meiserville 69-12 kV substation are “necessary or proper for the service, accommodation, convenience, or safety of its patrons, employees, and the public.”

The Court found that establishing “necessity” does not require a utility to demonstrate a violation of mandatory standards and directives such as those set forth by the North American Electric Reliability Corporation (NERC) and PJM Interconnection, L.L.C. (PJM) in Energy Conservation Council of Pa. v. Pa. Public Utility Commission (TrAILCo), 995 A.2d 465 (Pa. Cmwlth. 2010) and Energy Conservation Council of Pa. v. Pa. Public Utility Commission (Susquenhanna-Roseland),
25 A.3d 440 (Pa. Cmwlth. 2011).  Rather, the Court reasoned that because the NERC and PJM standards for transmission lines of 100 kV and above do not apply to PPL’s proposed 69 kV transmission line, requiring a violation of such standards to establish “necessity” would create an impossible standard for PPL to meet.  In addition, the Court found that “necessity” does not require a utility to show that a project is “absolutely necessary” in that the current load on a utility’s distribution system requires immediate relief such as in Application of PPL Electric Utilities (Chestnuthill), A-2010-2152104 (Pa. P.U.C., March 18, 2011). 

Overall, the Court stated that when determining “necessity,” the Commission should consider “the electric power needs of the public, the state of available technology and the available alternatives,” as required by Pennsylvania Power & Light Company v. Pa. Public Utility Commission, 696 A.2d 248
(Pa. Cmwlth. 1997).  Accordingly, the Court found that the Commission appropriately took these factors into consideration in finding that “a combination of reliability issues, together with previous small efforts at small system distribution upgrades which fail to alleviate the problem, can show need in appropriate circumstances.” 

In the dissenting opinion, Judge Leavitt stated that the Commission’s opinion should be reversed because the Commission should have considered the environmental impact of PPL’s proposed transmission line under the Environmental Rights Amendment, set forth in Article I, Section 27 of the Pennsylvania Constitution.

PA. P.U.C. v. Seder/The Times Leader  (consolidated with) PA. P.U.C. v. Kraus/The Morning Call 

No. 2132 C.D. 2013 and 2254 C.D. 2013 (consolidated) (Filed December 3, 2013 and December 19, 2013)

On December 3, 2014, the Commonwealth Court reversed the November 4, 2013 and November 20, 2013 Orders of the Office of Open Records which had determined that Section 335(d) of the Public Utility Code (66 Pa.C.S. Section 335(d)) required the release of the requested documents, and that since Section 335(d) required release of the requested documents, then the Right-to-Know Law (65 P.S. Section 67.101 et seq.) was not applicable to determine release of the requested documents. The newspapers had sought investigational materials related to a Commission investigation of PPL Electric Utilities Corporation (PPL) regarding PPL’s response to a snowstorm on October 29, 2011. The Commonwealth Court ruled that Section 335(d) of the Public Utility Code did not govern release of the documents, rather the Right-to-Know Law did. The Commonwealth Court also ruled that pursuant to the Right-to-Know Law, the noncriminal investigation exemption of the Right-to-Know Law exempted release of the requested documents. The newspapers filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on January 2, 2015, and the Supreme Court has yet to rule on the Petition.

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