Rejecting a claim by Pennsylvania's Small Business Advocate that the PUC must treat every competitive effect of a merger "good, bad, or indifferent" as a negative to be weighed against demonstrated "affirmative public benefits," Commonwealth Court affirmed the PUC's approval of a merger that indirectly transferred control of Embarq Pennsylvania (an ILEC) and Embarq Communications (an interexchange toll reseller) to CenturyTel. Lloyd v. Pa. Pub. Utility Comm'n, __A. 3d __2011) (496 CD 2010, filed March 1, 2011) (Brobson, J.).
HMS Legal Blog
On February 1, 2011, the Commonwealth Court issued an Opinion holding that a landowner does not have the right to strip mine in a public park in Allegheny County, Pennsylvania, even where his deed grants the right to remove all coal in and under the land without liability for any damage to the surface estate or the support estate. The Court reasoned that, in 1902, at the time of the original conveyance, strip mining was not employed in Pennsylvania or in the Allegheny County area.
Bringing welcome clarity for regulated entities, especially those that rely heavily on in-house legal teams whose members interact on a day-to-day basis with business decision makers, the Pennsylvania Supreme Court this week reversed the Superior Court’s narrow “client to lawyer” limitation on the attorney-client privilege and held that the privilege operates “in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” Gillard v. AIG Insurance Co., _A.3d ___(Pa. 2011) (10 EAP 2010; filed February 23, 2011) (Saylor, J.).
In a move that reflects growing concern over door-to-door marketing of retail energy the Pennsylvania PUC is seeking the input of industry stakeholders with an eye to adopting regulations that will curb perceived abuses.
Although trial courts and agencies often take a position on whether an order they have entered is final for purposes of appeal, it is essential for counsel to make an independent assessment of appealability, because orders that lower tribunals believe to be interlocutory and unappealable frequently are deemed final by the appellate court. That was the result in Fiore v. County of Allegheny, ___ A. 3d ___, ___ n. 3 (Pa Cmwlth. 2011) (1805 CD 2009, decided February 1, 2011), where a landowner who had valuable coal rights under South Park in Allegheny County filed two actions in the court of common pleas, one seeking a declaration that he had a right to strip mine and the other seeking appointment of a Board of Viewers. After the County filed preliminary objections to both actions, alleging among other arguments in each that the landowner had no right to strip mine, the trial court held a hearing on the issue of whether the landowner had a right to strip mine and then entered an order stating that based on the evidence he did not, without ever expressly ruling on the preliminary objections. In his opinion, the trial judge argued that the order was not final because the preliminary objections remained pending, but the Commonwealth Court viewing the matter from a practical perspective, held that the order was final because it effectively disposed of at least one of the preliminary objections – whether the landowner had the right to strip mine – and thus effectively disposed of both cases.
Orders granting new trials in civil and certain criminal proceedings are immediately appealable pursuant to Pa. R.A.P. 311 (a)(6), but is an order granting a new trial in a statutory appeal immediately appealable under the same Rule? In Pittsburgh Water & Sewer Authority v. Gladstone, 999 A. 2d 1248 (Pa. Cmwlth. 2010), the Commonwealth Court said it is not, because a statutory appeal is not a “civil action” within the meaning of the Rule, and is not a “proceeding” within the meaning defined in the Judicial Code. Under the facts and circu¬mstances presented in the case, however, the order was appealable as a collateral order because it met the three prongs of the collateral order test (it was “separable” from the main cause of action, because the error of law cited by the trial court for granting a new trial did not affect the merits of the underlying claim; it involved a right too important to be denied review because re-litigation of a matter is onerous and is the reason the Supreme Court promulgated Rule 311(a)(6) permitting an immediate appeal from an order in a civil action or proceeding granting a new trial; and the question presented was such that if review was postponed until final judgment the claim would have been irreparably lost, because the claim was that appellant should not be required to re-litigate the matter in a new trial.
After only a few months of collecting the newly increased rates from its 2010 Rate Case, Columbia Gas of Pennsylvania is back before the Pennsylvania Public Utility Commission seeking an additional $37.8 million in annual revenue.
Pennsylvania’s appellate rules permit a reply brief but limit the scope to “matters raised by appellee’s brief and not previously addressed in appellant’s brief.” Pa. R.A.P. 2113(a). Ideally, the reply brief is the opportunity for the appellant to add sharper focus the issues on appeal by responding to appellee’s advocacy in a way that underscores appellant’s principal themes. Make the most of it.
A reference to the wrong sections of the applicable law invalidated a Bureau of Professional and Occupational Affairs citation for a lapsed license. On January 24, 2011, the Commonwealth Court reversed a decision of BPOA’s State Registration Board for Professional Engineers, Land Surveyors and Geologists, because the Board cited the incorrect sections of the Engineers, Land Surveyor and Geologist Registration Law.
On January 4, 2011, the Pennsylvania Superior Court held that delay rental payments under a gas lease are not sufficient to extend gas leases indefinitely. Because the gas leases limited the ability of the lessee to forego production through the payment of delay rental for only one year, when the year ended and the lessee failed to commence production, the agreements expired.
On January 6, 2011, the Pennsylvania Commonwealth Court confirmed that municipalities may redact portions of their solicitors’ bills to eliminate disclosure of billing entries protected by the attorney-client privilege before producing the bills as part of a Right to Know Act request, and that the requestor may be enjoined to return unredacted copies erroneously produced by the municipality. The Court reviewed the appeal of a requestor, who had obtained unredacted invoices issued by the township’s open records officer despite the solicitor’s advice to withhold the invoices until they could be edited. The trial court issued a permanent injunction requiring the requesting lawyer to return the unredacted invoices, and a divided 3-judge panel of the Commonwealth Court affirmed.
On December 29, 2010, EPA issued a first-of-its-kind TMDL for the Chesapeake Bay. The TMDL, which stands for “Total Maximum Daily Load,” establishes a “pollution budget” for Pennsylvania and other states that contribute surface water flows to the Chesapeake Bay. Pennsylvania, in turn, also recently produced a “Watershed Implementation Plan” describing how the Commonwealth intends to allocate the nutrient reductions required to meet the goals of the TMDL.
Today, in split vote, the PUC approved new regulations intended to level the playing field for natural gas competition.
The Supreme Court’s recent decision in Berg v. Nationwide Mutual Insurance Co., __Pa. __, 6 A.3d 1002 (2010) (plurality opinion) serves notice that a majority of the Court continues to expect strict compliance with all of the very technical requirements of Pa. R.A.P. 1925(b)’s “concise statement of errors complained of on appeal” procedures. Although the upshot of the Court’s five opinions was that under the egregious facts presented no waiver was found, the broader message is that, even after 2007 amendments intended to reduce the number of appeals dismissed on waiver grounds for Pa. R.A.P. 1925 technical violations, counsel needs to adhere to all of Rule 1925’s technical requirements, use extreme caution, and essentially treat compliance with the letter of Pa. R.A.P. 1925 in the same way that jurisdictional deadlines are treated.
Did you know that Pennsylvania appellate courts may find an issue waived where a document relevant to the issue is omitted from the original record certified by the trial court, even though the document is available to the appellate court in the reproduced record and there is no dispute that the document was admitted into evidence and relied on by the trial court?
Revisiting the Arsenal Coal exception to the general rule that the exhaustion doctrine bars a challenge to administrative agency regulations until after the challenger is aggrieved by their application, the Supreme Court reaffirmed the availability of pre-enforcement review where the issue presented is ripe and the challenged regulations have an immediate impact on an industry such that the delay and uncertainty associated with enforcement and subsequent judicial review would cause hardship. Bayada Nurses, Inc. v. Dept. of Labor and Industry, __Pa. __, ___A. 2d ___ (2010) (67 MAP 2008, decided November 17, 2010).
Finding that an asbestos plaintiff defending a motion for summary judgment has standing to facially challenge the constitutionality of a liability-capping statute on dormant Commerce Clause and Equal Protection grounds, the Pennsylvania Supreme Court recently clarified the role of the “zone of interest” inquiry within the familiar “direct-immediate-substantial” test for standing. Johnson v. American Standard, __Pa. __, 8 A. 3d 318 (2010).