HIKO Energy, Aplt. v. PA PUC

[J-66-2018] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
HIKO ENERGY, LLC, : No. 39 EAP 2017
:
Appellant : Appeal from the Order of
: Commonwealth Court entered on
: June 8, 2017 at No. 5 CD 2017
v. : affirming the Order entered on
: December 3, 2015 by the
: Pennsylvania Public Utility
PENNSYLVANIA PUBLIC UTILITY : Commission at No. C-2014-2431410
COMMISSION, :
: ARGUED: September 26, 2018
Appellee :
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: June 5, 2019
I dissent. This Court granted allocatur to address three issues, including the
following:
(1) Whether the $1,836,125.00 penalty was so grossly
disproportionate to the penalties the Commission has
approved for similar or more egregious conduct as to violate
the Excessive Fines Clause of the Pennsylvania and U.S.
Constitutions.
HIKO Energy, LLC v. Pennsylvania Pub. Util. Comm'n, 176 A.3d 235 (Pa. 2017). This
issue presents a constitutional question regarding the excessive fines clauses of the
Pennsylvania and federal constitutions. In my view, this issue must be addressed and
decided by this Court in our resolution of this appeal.
Rather than resolving the legal issue presented, the Majority shifts the focus to an
entirely different legal issue, namely whether HIKO waived the constitutional issue below.
This Court did not, however, grant allocatur to consider this issue of waiver, and we did
not do so despite our full knowledge that the PUC had contested whether HIKO had
preserved the constitutional issue in the Commonwealth Court and that the waiver issue
was a central issue in that court’s disposition of the case. The Commonwealth Court is
well suited to address issues of waiver, for which there is already a well-established and
comprehensive body of case law. In contrast, this Court is best suited to resolve the
constitutional issue of first impression on which we granted allocatur.
If the Court had intended to decide the issue of waiver, we could have granted
allocatur to review it. We did not. The waiver issue is not encompassed within our grant
of allowance of appeal and is not an issue before the Court in this appeal. I must therefore
dissent, as I am of the view that this Court should proceed to decide the constitutional
issue on its merits by published opinion.
Chief Justice Saylor joins this dissenting opinion.
[J-66-2018] [MO: Mundy, J.] - 2