Kevin J. McKeon

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Kevin is an experienced appellate advocate and government law litigator. Co-author of West's Pennsylvania Appellate Practice, Kevin has briefed and argued appeals in all of Pennsylvania’s appellate courts and in various federal circuit courts of appeal including the Third, Ninth, and DC Circuits. He frequently litigates original jurisdiction actions in the Commonwealth Court of Pennsylvania on issues related to the constitutionality of state statutes and the legality of administrative agency regulations. Kevin also regularly represents clients before state and federal regulatory agencies, including the Pennsylvania Public Utility Commission (PUC), the Pennsylvania Gaming Control Board, the Department of Health’s Office of Medical Marijuana, and the Federal Energy Regulatory Commission (FERC), and in Right-to-Know Law appeals before the Office of Open Records (OOR).

With HMS colleagues Dennis Whitaker and Melissa Chapaska, he is a regular contributor to Pennsylvania Appellate Advocate, a blog that provides timely coverage and analysis of upcoming arguments in the Supreme Court of Pennsylvania, 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. He is past chair of the Supreme Court of Pennsylvania’s Appellate Court Procedural Rules Committee. Before entering private practice with HMS, Kevin served as law clerk to the late Honorable James S. Bowman, first president judge of the Commonwealth Court. Kevin is a frequent lecturer and panel moderator on appellate issues and on topics in administrative law. He is a recipient of the James S. Bowman award for outstanding practice and mentoring in administrative law.

Representative Matters

Appeals

• Represented Energy Transfer in Right-to-Know Law appeals in Pennsylvania appellate courts involving the Public Utility Confidential Security Information Disclosure Protection Act.
  
  
• Represents California Attorney General in appeals from FERC in the Ninth Circuit.
  
  
• Filed amicus briefs on behalf of Energy Association of Pennsylvania on issues on appeal from decisions of the PUC.
  
  
• Represented applicants to operate Alternative Treatment Centers under New Jersey’s Compassionate Use Medical Cannabis Act in permit denial challenges before the Superior Court of New Jersey, Appellate Division.
  
  
• Represented low income housing applicant in appeal to the Commonwealth Court of Pennsylvania from local housing authority denial based on state-legal medical marijuana usage.
  
  
• Represents Pennsylvania Professional Liability Joint Underwriting Association in Third Circuit appeals from orders declaring Pennsylvania statutes unconstitutional.
  
  
• Represented casinos in Supreme Court and Commonwealth Court appeals from Pennsylvania Gaming Control Board.

Original Jurisdiction Matters

• Represented medical marijuana permittees in Commonwealth Court challenges to Office of Medical Marijuana regulations and product recall directives, seeking preliminary injunctions.
  
  
• Represented fireworks retailers in Commonwealth Court challenge to statute that improperly delegated safety standard regulatory authority to industry safety standards entity.
  
  
• Represents Pennsylvania Builders Association in Commonwealth Court constitutional challenge to regulations adopted by Department of Labor and Industry under Pennsylvania Construction Code.
  
  
• Defended Pennsylvania One Call System in Commonwealth Court action by a One Call member over fee structure and bylaws.
  
  
• Represented Pennsylvania Racinos to secure preliminary injunction preventing governor’s budget impasse shutdown of casino gambling.     

Agency Litigation

• Represents California Attorney General in 2022 litigation at FERC stemming from the 2000-2001 California Energy Crisis.
  
  
• Defended rural electric cooperative before the PUC in complaint under Unincorporated Area Certified Territory Law.
  
  
• Represented large industrial customer before the PUC in opposition to Aqua Section 1329 acquisition of the wastewater system assets of Delaware County municipal authority, DELCORA.
  
  
• Represented Pennsylvania Medical Society in challenge to the computation of MCARE annual physician assessments before the Pennsylvania Insurance Department.
  
  
• Represented Connecticut Natural Gas Company, Southern Connecticut Gas Company, and Yankee Gas in interstate pipeline proceedings before FERC and federal courts.
  
  
• Represented various Pennsylvania natural gas distribution companies in rate and certificate proceedings at the PUC.
  
  

Representative Cases

• Medical Marijuana Access & Patient Safety, Inc. v. Klinepeter, No. 58 MD 2022 (Pa. Cmwlth. June 2, 2022) (Wojcik, J.) (unreported) (preliminarily enjoining the Department of Health’s Office of Medical Marijuana’s Terpene Recall Mandate).

• Energy Transfer v. Friedman, 265 A.3d 421 (Pa. 2021) (affirming Commonwealth Court’s reversal of Office of Open Records (OOR) determination requiring release of pipeline operator’s confidential security information (CSI) and holding that OOR does not have jurisdiction over CSI-designated records).
  
  
• Cease v. Housing Authority of Indiana County, 247 A.3d 57 (Pa. Cmwlth. 2021) (vacating lower court’s affirmance of housing authority’s denial of medical marijuana patient’s application and remanding with direction to establish standards under federal law for determining when and on what basis admission is prohibited for an applicant legally using medical marijuana and to apply those standards to applicant).
  
  
• Pennsylvania Independent Oil & Gas Association v. Pennsylvania One Call System, Inc., 245 A.3d 362 (Pa. Cmwlth. 2021) (sustaining preliminary objections to jurisdiction and transferring complaint to court of common pleas).
  
  
• Matter of the Application for Medicinal Marijuana Alternative Treatment Center for Pangaea Health and Wellness, LLC, 465 N.J. Super. 343 (App. Div. 2020) (vacating New Jersey Department of Health’s denial of medical marijuana grower and dispensary applications and remanding to address application scoring anomalies).
  
  
• Pennsylvania Prof’l Liab. Joint Underwriting Ass’n v. Wolf, 381 F. Supp. 3d 324 (M.D. Pa. 2018) (granting summary judgment in favor of non-profit association and declaring Act 41 of 2018 unconstitutional under the Fifth Amendment Takings Clause).
  
  
• AES Compassionate Care LLC v. Levine, No. 233 MD 2018 (Pa. Cmwlth. 2018)(McCullough, J.) (unreported) (preliminarily enjoining the Department of Health’s Office of Medical Marijuana’s medical marijuana research permit regulations as inconsistent with the statute and violative of delegation doctrine).
  
  
• Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205 (Pa. Cmwlth. 2018) (striking temporary tent provisions of fireworks portion of Act 43 of 2017 as unconstitutional delegation of legislative authority to private organization).
  
  
• 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).
  
  
• California ex rel. Harris v. FERC, 784 F.3d 1267 (9th Cir. 2015) (reversing and remanding FERC’s denial of refunds for California’s energy crisis purchases).
  
  
• 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 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) (validating and remanding challenge to legislature’s raid of physicians’ professional liability funds for general budgetary purposes).
  
  
• Hospital and Healthsystem Assoc. of Pa. v. Ins. Comm’r, 74 A.3d 1108 (Pa. Cmwlth. 2013) (upholding challenge to Insurance Commissioner’s interpretation of statutory formula for physicians’ professional liability fund assessment upheld and reversing agency determination).
  
  
• Bensalem Racing Ass'n v. Pa. State Harness Racing Comm'n, 19 A.3d 549 (Pa. Cmwlth. 2011) (reversing agency's orders denying intervention to competitor in account wagering application and granting application).
  
  
• Port of Seattle v. FERC, 499 F.3d 1016 (9th Cir. 2007), cert den. sub nom. 130 S. Ct. 1051 (2010) (reversing and remanding FERC’s denial of refunds for California’s energy crisis purchases).
  
  
• 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

• 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