Kevin J. McKeon

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Kevin is an experienced appellate advocate and government law practitioner.  Co-author of West’s Pennsylvania Appellate Practice and immediate past Chair of the Supreme Court of Pennsylvania’s Appellate Court Procedural Rules Committee, he has briefed and argued appeals in all of Pennsylvania’s appellate courts, and served as lead counsel in original jurisdiction actions before the Commonwealth Court of Pennsylvania.  He has also briefed and argued appeals in the federal courts, including the Ninth, D.C. and Third Circuits. With HMS partner Dennis Whitaker and others, he is a founder of and regular contributor to Pennsylvania Appellate Advocate, a blog that provides timely coverage and analysis of notable appellate decisions, allocatur grants, upcoming arguments, proposed and adopted rule changes, and other information of interest to lawyers, litigants, and others involved in or affected by issues presented in appeals in Pennsylvania’s appellate courts.

In addition to his appellate practice, Kevin appears regularly before the Pennsylvania Public Utility Commission, the Federal Energy Regulatory Commission, and other state and federal administrative agencies and courts in matters involving public utility regulation, gaming, insurance regulation, medical marijuana, and professional licensing.   

Before entering private practice with HMS in 1984, Kevin served as law clerk to the Honorable James S. Bowman, first president judge of the Commonwealth Court, and as that court’s first Deputy Prothonotary for Law.  Kevin is a frequent lecturer and panel moderator on appellate issues and on topics in administrative law, and is the 2014 recipient of the James S. Bowman award for outstanding practice and mentoring in administrative law.

Representative Matters

  • Represents California Attorney General in ongoing 2000-2001 energy crisis refund litigation before FERC and the federal circuit courts of appeal
  • Represents Stadium Casino in ongoing licensure matters before Gaming Control Board and Pennsylvania Supreme Court
  • Represents oil and gas company in ongoing oil and gas lease litigation before PA court of common pleas, Pennsylvania Superior Court and federal district court
  • Represents medical marijuana license applicants in 2017 appeals from PA Department of Health licensing decisions
  • Represents small business owners as amicus curiae in 2017 appeal involving challenge to Philadelphia soda tax ordinance
  • Represents petroleum refiner in 2017 oil pipeline flow reversal application before Pa. PUC.
  • Represented pipeline operators in 2016 Gas Hazardous Liquids Pipelines Act (Act 127) complaint before Pa. PUC
  • Represented Pennsylvania Health Care Association in 2015 jurisdictional challenge to Attorney General’s investigation and prosecution of nursing homes  
  • Represented XTO Energy Inc. in 2014 Peoples Natural Gas gas cost recovery proceeding before Pa. PUC
  • Represented Dominion Transmission Inc. in 2013 merger proceeding of Peoples Natural Gas and Equitable Gas before the Pa. PUC
  • Represented Pennsylvania Medical Society in 2013 Supreme and Commonwealth Court appeals involving computation of MCARE annual physician assessments and Pennsylvania’s use of MCARE funds for budgetary purposes
  • Represented Bensalem Racing Association in 2011 appeal from the Pa. Harness Racing Commission’s approval of Harrah’s Chester’s account wagering application.
  • Represented UGI Electric in its 2011 Energy Efficiency and Conservation filing before the Pa. PUC
  • Represented Exelon in 2009 hostile takeover of NRG before Pa. PUC
  • Represented Pennsylvania Racinos in 2007 preliminary injunction challenge to budget impasse shutdown of gambling operations
  • Represented Dominion Resources, Inc.’s natural gas distribution companies in pipeline proceedings before FERC and the federal courts
  • Represented Connecticut Natural Gas Company, Southern Connecticut Gas Company and Yankee Gas in pipeline proceedings before FERC and federal courts
  • Represented various Pennsylvania natural gas distribution companies in rate and certificate proceedings at the Pa. PUC

Representative Reported Cases

  • SugarHouse HSP Gaming, LP v. Pa. Gaming Control Bd., 162 A. 3d 353 (Pa. 2017)(affirming PGCB’s grant of license to Stadium Casino and remanding for further proceedings)
  • Pub. Utils Comm’n of Cal. v. Sellers of Long-Term Contracts, 155 FERC ¶ 63, 004 (2016) (initial decision finding that California Attorney General and other California complainants made necessary showing that Mobile-Sierra presumption does not apply to two long-term contracts based on finding of manipulation, fraud and public harm in excess of $1 billion)
  • California ex rel. Harris v. FERC, 784 F.3d 1267 (9th Cir. 2015)(FERC’s denial of refunds for California’s energy crisis purchases reversed and remanded)
  • Greenwood Gaming and Entertainment, Inc. v. Dept. of Revenue, 90 A. 3d 699 (Pa. 2014)(sustaining casino-racetrack’s appeal from computation of tax on gross terminal revenue, reversing Commonwealth Court, and permitting exclusion from tax base of value of promotional awards to patrons)
  • Hospital and Healthsystem Assoc. of Pa. v. Com., 77 A.3d 587 (Pa. 2013) (challenge to legislature’s raid of physicians’ professional liability funds for general budgetary purposes validated and case remanded)
  • Hospital and Healthsystem Assoc. of Pa. v. Ins. Comm’r, 74 A.3d 1108 (Pa. Cmwlth. 2013), (challenge to Insurance Commissioner’s interpretation of statutory formula for physicians’ professional liability fund assessment upheld and agency determination reversed)
  • Bensalem Racing Ass'n v. Pa. State Harness Racing Comm'n, 19 A.3d 549 (Pa. Cmwlth. 2011) (agency's orders denying intervention to competitor in account wagering application and granting application reversed)
  • Port of Seattle v. FERC, 499 F.3d 1016 (9th Cir. 2007), cert den. sub nom. 130 S. Ct. 1051 (2010) (FERC’s denial of refunds for California’s energy crisis purchases reversed and remanded)
  • Wings Field Pres. Assocs. L.P. v. Dept. of Transp., 776 A.2d 311 (Pa. Cmwlth. 2001) (statute imposing local restrictions on airport funding invalidated on special legislation and delegation grounds)

Honors & Distinctions

  • Immediate past chair, Pennsylvania Appellate Court Procedural Rules Committee (2015-2016)
  • 2014 recipient of Pennsylvania Bar Association’s James S. Bowman Award for outstanding practice in administrative law
  • Pennsylvania Superlawyers
  • Martindale-Hubbell “AV” Preeminent

Publications

Judicial Clerkship

  • Law Clerk to the Honorable James S. Bowman, President Judge, Commonwealth Court of Pennsylvania, 1979-1980

Government Service

  • Deputy Prothonotary for Law, Commonwealth Court of Pennsylvania, 1980-1982

Professional Affiliations

  • American Bar Association
  • Pennsylvania Bar Association
  • Dauphin County Bar Association
  • Energy Bar Association
  • James S. Bowman American Inn of Court
  • Commonwealth Court Historical Society