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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.

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