HMS Legal Blog

Natural Gas Pipeline Safety Bills Driven by Marcellus Shale Development In PA Move Forward

There are two natural gas pipeline safety bills pending before the Pennsylvania General Assembly: House Bill 344 and Senate Bill 325.  Each was met with overwhelming approval in the chamber in which it was proposed, and the passage of either would result in additional safety regulation of the natural gas industry in Pennsylvania by the Pennsylvania Public Utility Commission.

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Harness Racing Commission’s Denial of Intervention “Clearly Unreasonable”

Finding “clearly unreasonable” the Pennsylvania State Harness Racing Commission’s denial of flat track Philadelphia Park’s motion to intervene in harness track Harrah’s Chester’s telephone account wagering application, the en banc Commonwealth Court reversed the denial of intervention and also (in order to “right the wrong”) vacated the Commission’s order allowing Harrah’s Chester to commence operations of the new remote wagering system. Bensalem Racing Association, Inc.v. Pennsylvania State Harness Racing Commission, _A.3d ___(Pa. Cmwlth. 2011) (en banc) 1053 and 2710 C.D. 2010,
filed March 21, 2011) (Brobson, J.).

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PUC Stalls Met-Ed/Penelec Customer Education Plan

The Pennsylvania Public Utility Commission unexpectedly voted to delay implementation of the electricity shopping Customer Education Program for Metropolitan Edison Company and Pennsylvania Electric Company. The Commission was addressing an audit of the plans, which cost about $900,000 each, when it suspended implementation pending further comment from participants.  The Commission appears to be concerned that, due to lack of electric generation supplier participation in those territories, customer education about competitive alternatives may be premature.

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Pennsylvania Passes 1,000,000 Customer Mark in Competitive Electricity Market

It’s official - Pennsylvania has passed the 1 million customer mark in electricity shopping.  According to the latest weekly update on the Pa. Power Switch website (, the total number of customers switching to an electric generation supplier as of March 23, 2011, was 1,001,062.

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PUC “Opts Out” of Municipal Aggregation

The PUC has ruled unanimously that opt-out municipal aggregation programs violate the Commission’s regulations regarding the standards for changing a customer’s electricity generation supplier.

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Supreme Court Upholds Valley Forge Category 3 Slots License

Valley Forge Convention Center is a “well established resort hotel” that otherwise meets statutory licensing requirements for receipt of a Category 3 slots license, the Pennsylvania Supreme Court held in a 3-2 decision upholding the Gaming Board.

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Governor Forms Marcellus Shale Advisory Commission

Pennsylvania Governor Tom Corbett used his March 8, 2011 Budget address to announce creation of a Marcellus Shale Advisory Commission charged with developing a “comprehensive, strategic proposal for the responsible and environmentally sound development of Marcellus Shale” by July 22, 2011.

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PUC's Approval of Telephone Merger On Basis of Affirmative Public Benefits Upheld on Appeal

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.).

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Right To Strip Mine Must Be Explicit Indeed

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.

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Attorney-Client Privilege: A Two Way Street

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.).

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Citing Unreported Opinions: Worth the Trouble?

Effective in 2011 unreported opinions of Pennsylvania’s Commonwealth Court may be cited as persuasive authority, though not as binding precedent.

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Retail Energy Market Sales Practices To Be Subject Of PUC Rulemaking

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.

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Is the Order Final? That’s the Appellate Court’s Call

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.

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Is Order Granting New Trial in Statutory Appeal Appealable?

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.


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Columbia Gas Files for $37.8 million Rate Increase

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.

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Make the Most of Reply Brief Opportunity

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.

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Citation for Lapsed Professional Geologist License Vacated

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.

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Gas Lease Not Extended Indefinitely by Delay Rentals

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.

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Solicitors’ Invoices and Right-to-Know Act Requests

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.


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TMDL Draws Lawsuit from Farmers

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.


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