Kevin J. McKeon

 Print

Partner

Kevin is an experienced government law litigator and appellate advocate. Co-author of West's Pennsylvania Appellate Practice and immediate past Chair of the Supreme Court of Pennsylvania’s Appellate Court Procedural Rules Committee, Kevin has briefed and argued appeals in all of Pennsylvania’s appellate courts and in various federal circuit courts of appeal including the Ninth, D.C. and Third Circuits. He is frequently involved in original jurisdiction actions in the Commonwealth Court on issues related to the constitutionality of state statutes and the legality of administrative agency regulations. 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.

Kevin also appears regularly on behalf of diverse clients before state and federal regulatory agencies including Pennsylvania’s Public Utility Commission, the Department of Health’s Office of Medical Marijuana, the Insurance Department, the Gaming Control Board, various professional licensing boards, and the Federal Energy Regulatory Commission (FERC).   

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 of Pennsylvania, 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.  He received the James S. Bowman award for outstanding practice and mentoring in administrative law.

Representative Matters

• Represents Pennsylvania casinos in opposing so-called “skill game” operations.
• Secured preliminary and permanent injunctions on behalf of the Pennsylvania Professional Liability Joint Underwriting Association to prevent governmental taking of $200 million of insurer’s private assets.
• Secured preliminary injunction on behalf of medical marijuana permittees to halt implementation of regulations that would have allowed issuance of permits intended for research on a noncompetitive basis.
• Successfully obtained Commonwealth Court declaratory and injunctive relief invalidating 2017 statute that authorized the sale of consumer fireworks from temporary tents.
• Represents trucking and motorist association in 2018 federal district court commerce clause/right to travel challenge to Pennsylvania Turnpike Commission’s tolling structure.
• 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 Phase I and Phase II medical marijuana permit applicants in appeals to Pennsylvania Department of Health from Office of Medical Marijuana’s permit denials and rejections.
• Represents California Attorney General in ongoing 2000-2001 energy crisis refund litigation before FERC and the federal circuit courts of appeal.
• Represented Stadium Casino in 2015-2017 licensure matters before Gaming Control Board and Pennsylvania Supreme Court.
• Represented small business owners as amicus curiae in 2017-2018 Commonwealth Court and Supreme Court appeals challenging Philadelphia’s soda tax ordinance
• Represented 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 2008-2013 Insurance Department litigation and Commonwealth Court and Supreme 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 Cases

• Pennsylvania Prof’l Liab. Joint Underwriting Ass’n v. Wolf, 381 F. Supp. 3d 324 (M.D. Pa. 2018) (Act 41 of 2018 declared unconstitutional as violation of Fifth Amendment Takings Clause).
  
  
• AES Compassionate Care, LLC et al. v. Levine, (Pa. Cmwlth. 2018) (McCullough, J.) (unreported) (Department of Health’s Office of Medical Marijuana’s medical marijuana research permit regulations preliminarily enjoined as inconsistent with the statute and violative of delegation doctrine).
  
  
• Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205 (Pa. Cmwlth. 2018) (temporary tent provisions of fireworks portion of Act 43 of 2017 stricken as unconstitutional delegation of legislative authority to private organization).
  
  
• Pennsylvania Prof’l Liab. Joint Underwriting Ass’n v. Wolf, 324 F. Supp. 3d 519 (M.D. Pa. 2018) (Act 44 of 2017 declared unconstitutional as violation of Fifth Amendment Takings Clause).
  
  
• SugarHouse HSP Gaming, LP v. Pa. Gaming Control Bd., 162 A.3d 353 (Pa. 2017) (PGCB’s grant of license to Stadium Casino affirmed and remanded for further proceedings).
  
  
• 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, 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) (casino-racetrack’s appeal from computation of tax on gross terminal revenue sustained and exclusion from tax base of value of promotional awards to patrons permitted).
  
  
• 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 Super Lawyers®
• Martindale-Hubbell “AV” Preeminent

Publications

• West’s Pennsylvania Appellate Practice (3 Vol. Treatise updated annually)
• Pennsylvania Appellate Advocate
• Chapter 20 Litigation: Regulatory Policymaking by Other Means, The Legal Intelligencer (May 28, 2019)

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