PAPUC ALJs Block EGS’s Attempt to End Complaint Proceeding By Exiting the Jurisdiction
September 14, 2015
An order by two Pennsylvania Public Utility Commission ALJs make clear that an electric generation supplier may not block complaints alleging unfair marketing practices even by attempting to exit the jurisdiction of the Commission. In Kane & McCloskey v. Blue Pilot Energy, LLC, the EGS responded to a complaint filed jointly by the Attorney General and the Office of Consumer Advocate alleging deceptive or unreasonable marketing practices by filing a notice of its intention to abandon its EGS license. It then filed a motion to dismiss the AG/OCA complaint alleging that the complaint process should not go forward. Specifically, Blue Pilot contended that the complaint should be dismissed in part because it didn’t have the resources to continue to litigate the proceeding, and it had notified all its customers that it was going to cease doing business in Pennsylvania.
The AG/OCA opposed both the request for abandonment and the motion to dismiss the complaint alleging unreasonable marketing practices. They argued essentially that abandoning service is not a valid basis on which to dismiss a complaint and that the motion had not set forth any other valid basis for dismissal.
The ALJs rejected the motion, pointing out that Blue Pilot had not filed for bankruptcy or failed to maintain legal representation. It also pointed out that, at the time of the resolution of the motion, Blue Pilot still had about 175 customers in Pennsylvania. Since the AG/OCA were not interested in ending the prosecution of their complaint case, the ALJs reasoned, the case should go forward.
This case can be contrasted to a recent complaint filed by the PUC’s Bureau of Investigation and Enforcement against Glacial Energy (Pa PUC, Bureau of Investigation and Enforcement v. Glacial Energy of Pennsylvania, Inc.). After responding to a complaint filed by BIE alleging that Glacial had not provided fully accurate information in its PUC licensing application and should have its license rescinded, BIE agreed to end the prosecution after Glacial filed for bankruptcy under Chapter 11. Glacial asked that the complaint proceeding could be stayed while its assets were sold in bankruptcy, and both BIE and the ALJ agreed.
The lesson appears to be that shutting down retail operations in Pennsylvania won’t necessarily stop a complaint action at the PUC – but a bankruptcy filing and a sale to an unaffiliated entity might.
If you have any questions, please contact Dan Clearfield at (717) 237-7173 or dclearfield@eckertseamans.com.
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