On September 28, 2016, the Pennsylvania Supreme Court (Court) ruled on a Commonwealth Court remand decision of the Robinson Township 2013 Court decision, where the Court held key provisions of Act 13 (the statute implementing major changes in Pennsylvania’s oil and gas laws and the ability of local government to regulate this industry) were unconstitutional (HMS Blog). In the 2016 Robinson Township decision, the Court: (1) upheld the Commonwealth Court’s holding that provisions related to Public Utility Commission (PUC) review of local ordinances are unseverable from unconstitutional provisions and thus unenforceable, and (2) held four additional provisions of Act 13, including the grant of eminent domain, unconstitutional.
HMS Legal Blog
In an April 19, 2016 Opinion, the Pennsylvania Commonwealth Court affirmed the Public Utility Commission’s (PUC) grant of a certificate of public convenience (CPC) for experimental authority to operate as a common carrier to Raiser-PA, LLC (Raiser) in Pennsylvania, excluding Philadelphia. Raiser is a subsidiary of Uber Technologies, Inc. (Uber), which licenses the technology to Raiser that allows users to request a ride via smartphone app.
Pennsylvania’s appellate rules and the ever-evolving case law interpreting them can make it a challenge to even get to the merits of an appeal. Don’t get caught on the wrong side of a waiver trap. Some reminders:
On January 2, 2014 the Pennsylvania Public Utility Commission and Department of Environmental Protection (“Applicants”) filed an Application for Reargument of Robinson Township,1 in the Pennsylvania Supreme Court, requesting reconsideration of the December 19, 2013 plurality opinion and remand to the Commonwealth Court for an evidentiary hearing and findings of fact. The Applicants argue that the plurality of the Court, in applying its newly coined Environmental Rights Amendment balancing test, adopted novel and unsupported findings of fact, contrary to established Supreme Court principle against taking on a fact finding role in its appellate jurisdiction. Robinson Township, et al., (“Townships”) answer that no disputed facts were necessary to the Court’s balancing test, and in the alternative, judicial estoppel precludes Applicants from requesting an evidentiary hearing because Applicants successfully argued in the Commonwealth Court that the Act’s constitutionality was purely a question of law. Applicants also request remand to have the Commonwealth Court determine whether the unconstitutional set back provisions are severable from the rest of Act 13.
The Pennsylvania Supreme Court has adopted rule changes that will result in shorter appellate briefs based on a “word count” approach of the type used in the Federal Rules of Appellate Procedure. The current volume limits are 70 pages for principal briefs and 25 pages for reply briefs. Under the new rules, the volume limits are a “word count” of 14,000 words for principal briefs (approximately 56 pages assuming 250 words per page) and 7,000 words for reply briefs (approximately 28 pages assuming 250 words per page). A brief based on word count must be accompanied by certification of counsel that the brief complies with the limit. The rule permits continued use of a page count to determine volume, but at the reduced page count levels of 30 pages for principal briefs and 15 pages for reply briefs.
Under two new proposals to amend Pennsylvania’s Rules of Appellate Procedure lawyers will be writing shorter briefs with less risk of waiver.
Last week, the en banc Commonwealth Court upheld in Metropolitan Edison Co. v. Pa. Pub. Util. Comm’n, No. 532 C.D. 2010 (Jun. 14, 2011), the Pennsylvania Public Utility Commission’s (“Commission”) decision in two consolidated cases in which the Commission held that “marginal transmission losses” or “line losses” are generation-related costs and are not recoverable from ratepayers under the Companies’ Transmission Service Charge Riders. In a surprising upset for the Commission, however, the court remanded the case in-part for further consideration on whether Companies should be permitted to collect carrying charges.