PENNSYLVANIAPUBLIC UTILITY COMMISSION

Harrisburg, PA 17105-3265

Public Meeting held December 4, 2014

Commissioners Present:

Robert F. Powelson, ChairmanJohn F. Coleman, Jr., Vice ChairmanJames H. CawleyPamela A. WitmerGladys M. Brown

William MacLuckie C-2014-2402558

v.

Palmco Energy PA, LLC

OPINION AND ORDER

BY THE COMMISSION:

Before the Pennsylvania Public Utility Commission (Commission) for

consideration and disposition are the Exceptions of the Complainant, William R.

MacLuckie (Complainant or Mr. MacLuckie) filed on June 25, 2014, and the Exceptions

of the Office of Consumer Advocate (OCA) filed on July 10, 2014, to the Initial Decision

(I.D.) of Administrative Law Judge (ALJ) Joel H. Cheskis issued on June 20, 2014.

Palmco Energy PA, LLC, a natural gas supplier (Palmco or NGS), filed Replies to

Exceptions on September 17, 2014.1 For the reasons stated below, we will grant in part

the Exceptions of the OCA and Mr. MacLuckie; reverse the ALJ’s Initial Decision,

1 Palmco requested and was granted two unopposed continuances for the filing of its Replies to Exceptions. See August 14, 2014 Secretarial Letter.

which granted Palmco’s request to dismiss Mr. MacLuckie’s Formal Complaint

(Complaint); and remand this matter to the Office of Administrative Law Judge for

further proceedings consistent with this Opinion and Order.

History of the Proceeding

On January 14, 2014, the Complainant filed the Complaint against Palmco.

In response to Paragraph 4 of the Complaint form requesting the reason for the

Complaint, the Complainant attached a letter averring, inter alia, false advertising and

“entrapment” by Palmco with respect to the marketing of its variable rate. Also attached

were several documents, which included copies of the Complainant’s bills for October

2013 through January 2014, and what appears to be a January 5, 2014 printout from this

Commission’s PAGasSwitch website. In his response to the request for relief, Mr.

MacLuckie averred that “[t]he Court should determine this issue.”

On February 18, 2014, Palmco filed an Answer (Answer) to

Mr. MacLuckie’s Complaint. In its Answer, Palmco denied the Complainant’s

allegations that it engaged in any false advertising or unethical business practices or that

the Complainant signed up for service from Palmco through the Commission’s website.

Palmco admitted it sold gas at a variable rate, did not charge a termination fee, and

identified on the Commission’s website that the initial gas rate was an introductory rate

valid for the first two months of service. Palmco also attached to its Answer the same

PAGasSwitch printout that was attached to Mr. MacLuckie’s Complaint. In addition,

Palmco appended unexecuted, undated, and incompleted (i.e., blank) copies of the Sales

Contract and Welcome Letter it averred were provided to the Complainant. Answer at

1-2, Exhibits A-C. In its Answer, Palmco further contended that it actually provided the

Complainant three months of service at the advertised introductory rate and that the

NGS honored the request it received on behalf of the Complainant to terminate its gas

supplier service to the Complainant. Palmco further averred that although it had done

2

nothing wrong, after a call from the Commission’s Bureau of Consumer Services (BCS),

it offered the Complainant a “courtesy” refund of $31.15, which the Complainant

cashed. Answer at 2-3 (emphasis in original). Palmco summarized its position that its

offering of a variable rate guaranteed for only two months and subject to no ceiling was

in compliance with its Sales Contract and the Commission’s applicable rules and

requirements. Finally, with respect to Mr. MacLuckie’s request for relief, the NGS

denied a court of law had jurisdiction, averred that such jurisdiction was vested in the

Commission, and admitted that Mr. MacLuckie had spoken with the NGS about the

matter prior to the filing of the Complaint. Palmco requested in the “Wherefore”

paragraph of its Answer that the Complaint be dismissed. Answer at 3-4.

On March 24, 2014, the Complainant served on the ALJ and Palmco an

untitled document intended to “ferret out the substantive elements of [his] complaint[.]”

March 24, 2014 Submission at 1. In this document, Mr. MacLuckie further explained

the Exhibits attached to his original Complaint and also raised the issue of his telephonic

inquiries to Palmco’s representatives regarding the severity of increases he might expect

under the NGS’ variable rate policy. The Complainant also referred to the Pennsylvania

Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P. S. §§ 201-1 - 201-9.3, as well as our Regulations at 52 Pa. Code Chapters 62 and 111 addressing

standards of conduct in the residential competitive gas market. The Complainant again

deferred to the Commission’s discretion regarding the appropriate action to take.

On April 28, 2014, Palmco filed a document captioned “Amended Answer

and Motion to Dismiss” (Amended Answer).2 In its Amended Answer, Palmco inserted

minor word changes, for example contending the Complainant signed up “by telephone”

via third-party verification (TPV) and clarifying its explanation of the BCS contact, but

2 In the Initial Decision, the ALJ refers to this document as a Motion to Dismiss, which, the ALJ concludes pursuant to 52 Pa. Code § 5.102, is more properly considered a Motion for Summary Judgment. I.D. at 6.

3

otherwise essentially repeated the same averments presented in its original Answer.

Substantively new to Palmco’s Amended Answer was its response to the Complainant’s

request for relief, which Palmco now denied on the basis that it failed to set forth “a

clear and concise statement of the relief sought.” Amended Answer at 3 (emphasis in

original). This, contended Palmco, made it “impossible to determine exactly what relief

the Complainant is seeking [rendering] a hearing on this matter essentially meaningless.”

Amended Answer at 4. No separate Motion to Dismiss was attached or argued; no New

Matter requiring a response from Mr. MacLuckie was averred; and no Notice to Plead

was appended. In closing, Palmco repeated its request in the “Wherefore” paragraph of

its Amended Answer that the Complaint be dismissed, and further requested that the

hearing that had been rescheduled at Palmco’s request to May 15, 2014, be cancelled.

On May 5, 2014, the Complainant filed a letter identified as intending to

respond to Palmco’s Motion to Dismiss (Answer to Motion), which the ALJ accepted as

a timely answer to Palmco’s request for dismissal.3 I.D. at 3 n. 1. In the letter,

Mr. MacLuckie identified an outstanding discovery request served on Palmco.

Mr. MacLuckie also contended that Palmco’s Motion to Dismiss “avoids the discussion

of any of the substantive issues upon which the Complaint is based[,]” and that the

“factual evidence provided represents a justifiable reason for the PUC to formally

investigate Palmco Energy and to assess Palmco’s suitability as an (sic) Natural Gas

Supplier in Pennsylvania.” Mr. MacLuckie again cited to the UTPCPL as well as to our

competitive market and gas supplier Regulations. Answer to Motion at 1-3.

The ALJ cancelled the hearing scheduled for May 15, 2014, pending

disposition of Palmco’s request for dismissal. I.D. at 4. On June 20, 2014, the

Commission issued the ALJ’s Initial Decision, which granted Palmco’s request and

dismissed Mr. MacLuckie’s Complaint. The Complainant filed Exceptions on June 25,

3 Although the document is dated April 30, 2014, (I.D. at 4), it was not received by the Secretary’s Bureau until May 5, 2014.

4

2014. On July 10, 2014, the OCA filed a Notice of Intervention, and by separate filing,

Exceptions to the ALJ’s Initial Decision. On September 17, 2014, Palmco filed Replies to

Exceptions.

Discussion

ALJ Cheskis made fifteen Findings of Fact (FOF) and reached twenty

Conclusions of Law (COL). The Findings of Fact and Conclusions of Law are

incorporated herein by reference and are adopted without comment unless they are either

expressly or by necessary implication rejected or modified by this Opinion and Order.

We also note that any issue or Exception that we do not specifically

delineate shall be deemed to have been duly considered and denied without further

discussion. The Commission is not required to consider expressly or at length each

contention or argument raised by the parties. Consolidated Rail Corp. v. Pa. PUC, 625

A.2d 741 (Pa. Cmwlth. 1993); also see, generally, University of Pennsylvania   v. Pa.

PUC, 485 A.2d 1217 (Pa. Cmwlth. 1984).

Legal Standards

Our Regulations permit parties to a proceeding to file preliminary motions

in the form of Preliminary Objections, Motions for Summary Judgment and for Judgment

on the Pleadings, and Motions generally seeking relief. 52 Pa. Code §§ 5.101-5.103.

Preliminary objections are available specifically with respect to nonconforming or

insufficient pleadings and allow parties against whom such an objection is filed the

opportunity to cure the insufficiency by filing an amended pleading. 52 Pa. Code

§§ 5.101(a), (e). As the ALJ recognized, Motions to Dismiss are not expressly authorized

in our Regulations. I.D. at 6.

5

The ALJ deemed the request for dismissal incorporated in the title and

“Wherefore” paragraph of Palmco’s Amended Answer to be more properly considered a

Motion for Summary Judgment and applied our Regulation at 52 Pa. Code § 5.102,

which states, in pertinent part:

(a)  Generally. After the pleadings are closed, but within a time so that the hearing is not delayed, a party may move for . . . summary judgment. A motion must contain a notice which states that an answer or other responsive pleading shall be filed within 20 days of service of the motion.

* * *

(c)  Motion for summary judgment. A motion for summary judgment must be based on the pleadings and depositions, answers to interrogatories, admissions and supporting affidavits. Documents not already filed with the Commission shall be filed with the motion.

(d)  Decisions on motions.

(1)  Standard for grant or denial on all counts. The presiding officer will grant or deny a . . . motion for summary judgment, as appropriate. The judgment sought will be rendered if the applicable pleadings, depositions, answers to interrogatories and admissions, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.

On a Motion for Summary Judgment, the moving party bears the burden of

showing that no genuine issue of material fact exists and that it is entitled to a judgment

as a matter of law. We must view the record in the light most favorable to the non-

moving party, giving that party the benefit of all reasonable inferences. First Mortgage

Co. of Pennsylvania v. McCall, 459 A.2d 406 (Pa. Super. 1983); Mertz v. Lakatos, 381

A.2d 497 (Pa. Cmwlth. 1978). All doubts as to the existence of a genuine issue of

material fact must be resolved against the moving party. Thomson Coal Company v. Pike

6

Coal Company, 412 A.2d 466 (Pa. 1979). Judgment will be granted only where the right

to relief is clear and free from doubt. Thus, a preliminary motion should prevail if the

record shows that there is no genuine issue as to a material fact and the moving party is

entitled to judgment as a matter of law.

We have interpreted Section 5.102(c) of our Regulations in conformity with

Rule 1035 (now Rule 1035.1) of the Pennsylvania Rules of Civil Procedure. South River

Power Partners, L.P. v. West Penn Power Company, Docket No. C-00935287 (Order

entered November 6, 1996). Accordingly, a non-moving party may not rest upon mere

allegations or denials of the pleadings, but must submit some materials to establish that a

genuine issue of material fact exists. Stover v. The United Telephone Co. of

Pennsylvania, Docket No. C-00923833 (Order entered July 21, 1992); see also Nicastro

v. Cuyler, 467 A.2d 1218 (Pa. Cmwlth. 1983); Pennsylvania Gas & Water Co. v. Nenna

& Frain, Inc., 467 A.2d 330 (Pa. Super. 1983); Geriot v. Council of Borough of Darby,

457 A.2d 202 (Pa. Cmwlth. 1983).

A ruling for summary judgment, where properly exercised, serves judicial

economy by avoiding a hearing where no factual dispute exists. If no factual issue

pertinent to the resolution of a case exists, a hearing is unnecessary. 66 Pa. C.S. § 703(a);

Lehigh Valley Power Committee v. Pa. PUC, 563 A.2d 557 (Pa. Cmwlth. 1989); S.M.E.

Bessemer Cement, Inc. v. Pa. PUC, 540 A.2d 1006 (Pa. Cmwlth. 1988); Walter Painter

and Donna Painter v. Aqua Pennsylvania, Inc., Docket No. C-2011-2239556 (Order

entered May 22, 2014).

The ALJ’s Initial Decision

In this case, the ALJ set forth the standard for grant of a Motion for

Summary Judgment. I.D. at 6-8. Referring to the “detailed and well-pled Complaint,

including numerous attachments,” a “package of documents” that the Complainant

7

“submitted in advance of the Initial Hearing pursuant to the Prehearing Order,” and the

Complainant’s Answer to “Palmco’s Motion to Dismiss,” the ALJ concluded that a

hearing was not necessary and that Mr. MacLuckie’s Complaint should be dismissed.

I.D. at 8; COL Nos. 9, 20.

Summarizing the information provided in each of Mr. MacLuckie’s filings,

the ALJ first concluded that the gravamen of Mr. MacLuckie’s Complaint was that

Palmco violated the UTPCPL. This, the ALJ found, was outside the Commission’s

jurisdiction to enforce. I.D. at 10; COL No. 11. Acknowledging that Mr. MacLuckie

also raised issues regarding the propriety of Palmco’s marketing under our consumer

protection and supplier Regulations, the ALJ concluded that “even when viewing

Mr. MacLuckie’s Complaint in the light most favorable to him, and accepting as true

every well-pleaded fact [and] reasonable inference . . . Mr. MacLuckie has failed to state

a claim upon which relief can be granted.” I.D. at 11. Finding that “it is clear and free

from doubt that there is no genuine issue of material fact” and that “Palmco’s right to

prevail is so clear that a hearing would be a fruitless exercise,” the ALJ concluded that

judgment on the pleadings should be entered. I.D. at 10.

Most conclusive to the ALJ’s determination was Mr. MacLuckie’s

acknowledgement of the fact that he contracted for gas at a variable rate for which there

was no ceiling, quoting Palmco’s Sales Contract, which was appended to Palmco’s

Answer and Amended Answer as Exhibit B, as follows:

Natural Gas Price: If you receive natural gas supply service from Palmco Energy PA, LLC (“Palmco Energy” or “Palmco”), you will pay a price that will vary from month to month based on the applicable monthly NYMEX closing price for natural gas, applicable interstate transportation costs, any supply and agency functions that Palmco performs for you, and other prevailing market conditions. Your initial price for natural gas supply service will be ___ per (ccf, DTH, Mcf, therms). There is no ceiling price for your gas supply service.

8

I.D. at 11. See also I.D. at 8, 16; FOF Nos. 4, 15.

Reviewing Palmco’s Welcome Letter and the printout from the

Commission’s PAGasSwitch website, the ALJ noted Palmco had identified the starting

price for service and encouraged customers to contact the NGS with questions, and also

identified the rate as an introductory rate valid for the first two months. I.D. at 11-12. The

ALJ concluded as follows:

Palmco has not engaged in any fraudulent, deceptive or unlawful behavior in violation of the Commission’s regulations. Palmco has been clear and unambiguous in the terms of service it offered Mr. MacLuckie. What Mr. MacLuckie believes constitutes false advertising or unethical business practices employed by Palmco is neither false nor unethical. In fact, the PaGasSwitch website, to the Commission’s credit and as noted on the attachment to Mr. MacLuckie’s Complaint, specifically delineates which service offerings are fixed and which are variable, as well as other terms of service such as contract length, whether a cancellation fee applies and the price per ccf. Had Mr. MacLuckie not desired gas service with a price that would vary month to month with no ceiling price, he should not have enrolled with Palmco in the first place.

* * *

Furthermore, it is not unreasonable, nor is it false advertising or unethical business practices, for Palmco to offer a low introductory rate to entice new customers while charging customers a different rate that had increased following the expiration of the introductory rate.

I.D. at 12-13.

Citing William Towne v. Great American Power, LLC, Docket No.

C-2012-2307991 (Order entered October 18, 2013) (Towne), the ALJ again repeated that

9

Mr. MacLuckie recognized that he contracted for a variable rate for which there was no

ceiling and therefore must bear some responsibility for his own choices. Finding that

Mr. MacLuckie made no averment that Palmco violated its tariff, the Code, our

Regulations, or any order, and finding he pleaded no facts in dispute sufficient to warrant

a hearing, the ALJ dismissed the Complaint. I.D. at 13.

The ALJ then turned to Palmco’s contention in its Amended Complaint that

challenged Mr. MacLuckie’s conformance of his Complaint to our Regulations at 52 Pa.

Code § 5.22(a)(6) on the basis that it failed to state a clear and concise statement of the

relief sought. I.D. at 13. As described above, in bringing his Complaint, Mr. MacLuckie

averred that Palmco’s marketing practices constituted false advertising and unethical

business practices and called into question Palmco’s suitability as an NGS in

Pennsylvania under not just the UTPCPL but also our Regulations. As his request for

relief, Mr. MacLuckie essentially deferred to our judgment.

The ALJ discussed the standards for complaints under Section 5.22(a)(5) of

our Regulations, 52 Pa. Code § 5.22(a)(5), which requires that a Complaint set forth a

clear and concise statement of the act or omission being complained of, and which was

not raised by Palmco in its Answer. The ALJ also addressed Section 5.22(a)(6), 52 Pa.

Code § 5.22(a)(6), which requires that a complainant plead a clear and concise statement

of the relief sought, and which was raised by Palmco. I.D. at 14. Citing cases supporting

the premise that an adverse party must be sufficiently advised of the material facts in

order to prepare a defense otherwise due process will be denied, the ALJ found that the

Complainant’s deference to our enforcement was insufficient to enable Palmco to prepare

a defense. This, the ALJ believed, was particularly so in light of Palmco’s assertion that

it offered Mr. MacLuckie a full refund of his gas costs and that, despite Palmco’s various

settlement attempts, Mr. MacLuckie continued to pursue his Complaint. I.D. at 14-15.

Thus, the ALJ concluded that in his Complaint Mr. MacLuckie failed to abide by Section

5.22(a)(6) by failing to set forth a clear and concise request for relief and this in turn

10

“inhibited Palmco’s ability to properly prepare for the case.” I.D. at 16; COL No. 14.

Other than his previous conclusion that there were no material facts in dispute, the ALJ

made no specific finding or conclusion regarding the sufficiency of the act or omission

complained of by Mr. MacLuckie under Section 5.22(a)(5).

With respect to Mr. MacLuckie’s request that Palmco’s marketing practices

be investigated, the ALJ cited to the extensive examination of the marketing of variable

rates in a competitive market by other parties, including the General Assembly, this

Commission, and the Attorney General, and the fact that while Mr. MacLuckie could

represent himself, he could represent no others in any investigation. I.D. at 15-16; COL

No. 19. From this, and reiterating that Mr. MacLuckie readily admitted to entering into a

contract with a variable rate and no ceiling, the ALJ concluded that Mr. MacLuckie’s

failure to state a clear and concise statement of the relief sought inhibited Palmco’s

ability to defend the case and the Complaint should be dismissed. I.D. at 16.

The Parties’ Exceptions and Replies

In his Exceptions,4 Mr. MacLuckie questions the ALJ’s conclusion that

there is no genuine issue of material fact especially considering that he has outstanding

discovery. Complainant Exc. at 1. Further, Mr. MacLuckie refers to Palmco’s having

issued to Mr. MacLuckie a check in the amount of $839.62 in June 2014 as Palmco’s

acknowledgement that something is wrong. Apparently having refused the check,

Mr. MacLuckie states “[n]ot all people are for sale.” Id. Mr. MacLuckie further refers to

a term in Palmco’s Sales Contract that requires Palmco to provide three advance notices

4 The Complainant’s Exceptions do not strictly comply with the Regulation at 52 Pa. Code § 5.533(b), in that they fail to identify the Findings of Fact and Conclusions of Law to which exception is taken. Our Regulation at 52 Pa. Code § 1.2, however, allows the liberal construction of our requirements, particularly for pro se complainants, in order to secure the just, speedy, and inexpensive determination of proceedings.

11

prior to implementing any change in terms of service, a condition the Complainant avers

Palmco violated. Id. As Mr. MacLuckie describes, “[i]t is difficult to determine which

elements of the contract apply and which don’t.” Complainant Exc. at 2. With respect to

the relief he seeks, Mr. MacLuckie requests that Palmco be made to “live up to their

contracts[.]” Id.

The OCA raises three Exceptions to the ALJ’s Initial Decision. First, the

OCA contends that the ALJ erred in granting summary judgment on the basis of the

alleged insufficiency of Mr. MacLuckie’s Complaint. The OCA asserts that

Mr. MacLuckie’s pleadings provided clear notice that the Complainant “is seeking

commission review of Palmco’s conduct and compliance with Pennsylvania law and

Commission Regulations as to Palmco’s marketing and sale of gas supply,” including any

action the Commission may take with respect to Palmco’s license. OCA Exc. at 2.

Palmco had no difficulty responding to Mr. MacLuckie’s Complaint, contends the OCA,

and had it had difficulty, the proper relief would have been a preliminary objection to the

sufficiency of the pleading under 52 Pa. Code §§ 5.101(a)(3) and (4). OCA Exc. at 3.

The OCA further notes that Mr. MacLuckie’s Complaint clearly identified his position

that an introductory rate followed by high increases is abusive market conduct. OCA

Exc. at 3-4. The OCA also contends that there is a dispute between the Complainant and

Palmco over how Mr. MacLuckie signed up for service, whether through the

PAGasSwitch website or a Third Party Verification. OCA Exc. at 4.

The OCA then refers to Mr. MacLuckie’s March 24, 2014 Submission,

which included specific reference to the NGS’ license, as having prompted Palmco to file

its Amended Answer, including its new claim that Mr. MacLuckie’s request for relief

was so insufficient as to render a hearing meaningless. The OCA concludes that under

Towne, the issuance of monetary damages is not a prerequisite to granting relief. As the

OCA contends, in light of our ability to review a competitive supplier’s marketing

behavior, and without regard to whether any other such investigations are being

12

undertaken, we should always entertain an individual complaint and remain free to

condition a supplier’s license to ensure that deceptive marketing behavior is addressed

regardless of the specific relief requested. OCA Exc. at 4-6.

In its second Exception, the OCA claims the ALJ erred in concluding that

there were no material facts in dispute, pointing specifically to Mr. MacLuckie’s inquiries

into “any constraints on the variability of Palmco’s gas supply service” and Palmco’s

representative’s alleged response suggesting that it would be ridiculous to expect

exorbitant increases when the contract could be terminated at will. OCA Exc. at 6. The

OCA also refers to further telephonic inquiries made by Mr. MacLuckie about the extent

to which Palmco could raise its prices, only to be referred to the language in Palmco’s

Sales Contract identifying a variable rate that is not subject to a ceiling. As the OCA

states, Mr. MacLuckie’s Complaint “raises questions about the adequacy of this

disclosure in light of his conversations with Palmco representatives” having averred that

he inquired “three times to find out about Palmco’s policy regarding the magnitude of

variability months to month, not just the absolute maximum level of rates possible.”

OCA Exc. at 7. The OCA also notes the request Mr. MacLuckie made in his March 24,

2014 Submission for a copy of the recorded conversation, which apparently has yet to be

provided. As a result, the OCA contends there are material facts in dispute. OCA Exc.

at 8.

In its third and final Exception, the OCA contends that the ALJ erred in

determining that Palmco is entitled to summary judgment as a matter of law. Faulting the

ALJ’s conclusion that the Commission is without jurisdiction to enforce the UTPCPL,

the OCA contends that the Commission has incorporated the UTPCPL standards into its

own supplier market conduct Regulations, that Mr. MacLuckie raised potential violations

of Commission Regulations in his Complaint, and that deceptive and misleading conduct

under the UTPCPL may still comprise a violation of Commission Regulations. OCA Exc.

at 8-10. Given the dispute of material facts regarding Palmco’s variable pricing policy,

13

the OCA contends that the ALJ erred in finding, without further development of the

record, that Palmco’s conduct complies with our Regulations. OCA Exc. at 11.

Palmco filed Replies to both Mr. MacLuckie’s and the OCA’s Exceptions.

In response to Mr. MacLuckie’s contention that if material facts were lacking it was not

due to his lack of trying, Palmco contends that Mr. MacLuckie misunderstands the basis

for the ALJ’s decision. As Palmco explains, the ALJ did not conclude there were

insufficient material facts, but rather that there was no dispute over material facts. As to

Mr. MacLuckie’s outstanding discovery, Palmco contends that “Complainant had every

opportunity to bring the discovery issue to the attention of ALJ Cheskis at the appropriate

time, but did not do so.” R. Exc. at 9. Palmco also contends that its offer to settle was in

line with the Commission’s policy on settlements and in no way recognized a problem.

Id. at 9-10. Finally, Palmco repeats the conclusion that it clearly identified its rate as

variable and without a ceiling as set forth in not only the NGS’ Sales Contract but also its

Welcome Letter. Id. at 10-11.

In response to the OCA’s Exception that the ALJ erred in granting

summary judgment on the basis of the insufficiency of the Complaint, Palmco contends

that “despite three bites of the apple,” the Complainant sought nothing clear and concise,

and certainly nothing specific to Palmco’s license to operate, but rather repeatedly

deferred to the discretion of the Commission to address Palmco’s conduct. Id. at 1-2.

With respect to the OCA’s assertion that Palmco’s allegation of insufficiency did not

inhibit the NGS’ ability to craft an Answer to the Complaint, Palmco responds that at no

point did the Complainant ever request license revocation and despite “OCA’s revisionist

interpretation of the Complaint,” to so interpret it now would deny Palmco its

“fundamental due process right and opportunity to prepare its case,” as the ALJ

concluded. Id. at 3. As to the OCA’s claim that Palmco should have filed a preliminary

objection if it believed the Complaint failed to conform to, or contained insufficient

specificity under, our Regulations, Palmco responds that preliminary objections are

14

“permissive,” and “[n]othing in the rules requires that such an objection be filed under

these or any other circumstances.” Id. at 3-4 (emphasis in original). Finally, Palmco

contends that the ALJ was free to disregard an error that does not affect a party’s

substantive rights, and even after three attempts, the Complainant still failed to assert a

clear and concise request for relief. Id. at 4.

Responding to the OCA’s second Exception, that material facts are in

dispute, Palmco asserts that the facts either are not in dispute or are immaterial. Palmco

asserts it never denied the Complainant’s claim that in response to an inquiry he was told

“it would be ridiculous for Palmco to raise their rates to exorbitant heights,” thus the

statement is not in dispute. It is, Palmco claims, an accurate statement, but no one

foresaw the impacts of last winter’s extreme weather. As to the Complainant’s further

telephonic inquiries into Palmco’s variable pricing policy, Palmco again states it never

denied that Mr. MacLuckie was referred to the NGS’ contract. Palmco contends,

however, that the OCA’s suggestion that Palmco’s personnel’s conversations with Mr.

MacLuckie may raise questions as to the adequacy of the NGS’ disclosure is unsupported

by any evidence. Id. at 5-6. Finally, with respect to the manner in which the

Complainant signed up for service, Palmco asserts that the Complainant never denied the

NGS’ averment in its Amended Answer that a TPV was involved, and even if this fact

were in dispute, it is not material. Id. at 6-7.

Responding to the OCA’s third Exception, that the ALJ erred as a matter of

law in granting summary judgment, Palmco contends that the ALJ’s conclusion was

based not only on his finding that the Commission lacked jurisdiction under the

UTPCPL, but also under his interpretation of the Commission’s Regulations, and the fact

that he found that the Complainant failed to state a claim upon which relief can be

granted. Id. at 7-8. Palmco also asserts that the OCA improperly relies on Towne as

support for the proposition that “the Commission is somehow imbued with jurisdiction”

under the UTPCPL because of its reference in our Regulations, and that recognition and

15

incorporation of practices prohibited under the UTPCPL is not the same as a grant of

jurisdiction under that act. Id.

Disposition

We grant in part the Exceptions of the Complainant and the OCA and

remand this proceeding to the Office of Administrative Law Judge. The ALJ correctly

stated that the record must be viewed in the light most favorable to the non-moving party,

that any doubt as to whether a material fact exists must be resolved against the moving

party, and that Palmco had the burden of showing that there was no genuine issue of

material fact and it was entitled to judgment as a matter of law. Upon review of the

record as it stands at this stage of the pleadings, however, we disagree with the ALJ that

Palmco satisfied this standard and met its burden.

The primary issue for our consideration is whether the pleadings,

depositions, answers to interrogatories and admissions, together with any affidavits, show

that there is no genuine issue as to whether Palmco violated any statute, regulation, or

order in its contractual dealings with Mr. MacLuckie, thus entitling the NGS to judgment

as a matter of law. We believe that based upon the allegations of record thus far, there

remain in dispute material facts and reasonable inferences therefrom over the oral

disclosures made regarding the magnitude of Palmco’s variable pricing practices during

Mr. MacLuckie’s discussions with Palmco’s representatives. We also believe that

Mr. MacLuckie’s pleading sufficiently conformed to our requirements to enable Palmco

to prepare a defense and therefore dismissal on that ground was in error.

Starting with the latter issue first, we recognize that Mr. MacLuckie is

pursuing his complaint against Palmco’s market behavior pro se. As such, his pleadings

have not always fully comported with our standards. As he acknowledged in his

March 24, 2014 Submission, his “background is in Analytical Spectroscopy and not in

16

the law so this is in large part uncharted territory for [him].” March 24, 2014 Submission

at 1. For this reason, we generally allow pro se complainants leeway, within the confines

of due process, in pursuing complaints. See Carlock v. The United Telephone Company

of Pennsylvania, Docket No. F-00163617 (Order entered July 14, 1993) (Carlock).

We also note that Palmco’s filings have at least equally, if not more so,

failed to comport with our regulatory standards. First, all preliminary filings require a

notice to plead; Palmco provided none. Second, our Regulations do not provide for the

filing of a Motion to Dismiss. While motions in general are available, our Regulation

provides that “a request may be made by motion for relief desired, except as may be

otherwise expressly provided in this chapter.” 52 Pa. Code § 5.103(a). Chapter 5

provides that the proper filing for relief from a nonconforming, insufficient, or legally

deficient pleading is a preliminary objection, allowing an opportunity for a pleading to be

corrected rather than summarily dismissed. As the OCA noted, a party unable to prepare

a defense due to the insufficiencies of a complaint is excused from filing an answer upon

the submission of a preliminary objection.5 OCA Exc. at 3; 52 Pa. Code § 5.101(e)(1).

Finally, preliminary objections are required to be filed as a separate document within

twenty days of the objectionable pleading, in this case the allegedly deficient Complaint.

52 Pa. Code § 5.101(d).

5 It is described in the Initial Decision that, in its Amended Answer, Palmco added reference to the fact that in response to a BCS inquiry, the NGS provided a courtesy refund of $31.14, which was cashed, and that “Palmco attached numerous documents to its Motion in support of its position.” I.D. at 3. We note, however, that both the averment of a “courtesy refund” and the identical attachments were included in Palmco’s original February 18, 2014 Answer. Thus, they were not newly pleaded grounds. The fact that no new information was pleaded demonstrates that there was nothing new in the Amended Answer to justify Palmco’s sudden change in position that the relief Mr. MacLuckie pleaded rendered Palmco incapable of mounting a defense. If Palmco were unable to formulate a defense, that could and should have been reflected in its original response to Mr. MacLuckie’s Complaint. It was not. Thus nothing in the Amended Answer provided any support for Palmco’s contention that failure to request specific relief rendered a hearing on the Complainant’s allegations meaningless.

17

We recognize, as did the ALJ in deeming Palmco’s request a Motion for

Summary Judgment, that Section 1.2(a) of our Regulations allows for the liberal

construction of our requirements in order to secure a just, speedy, and inexpensive

determination so long as the substantive rights of the parties are not affected. In this

regard, we do not find that Palmco’s substantive due process rights are impaired or that

Mr. MacLuckie’s failure to request specific relief beyond deference to our regulatory

judgment deprives Palmco the right or opportunity to defend its case. Whether Mr.

MacLuckie specifically sought action against Palmco’s license in any of his submissions

is irrelevant. All remedies permitted by law remain available to us whether or not

specifically pleaded.6 And Palmco certainly has sufficient notice of Mr. MacLuckie’s

claimed grievance, that he was assured that a rate increased by a factor of 2.76 times the

NGS’ introductory rate, Answer to Motion at 1, would be ridiculous, to prepare a

defense.

Moreover, in failing to file preliminary objections, Palmco’s

nonconformance to our Regulations arguably works a greater denial of Mr. MacLuckie’s

substantive rights. This is so because a grant of summary judgment directly puts Mr.

MacLuckie out of court. On the other hand, were Palmco to file a preliminary objection

with adequate support, Mr. MacLuckie would be advised how and why his absence of a

specific claim for relief inhibits Palmco’s ability to prepare its defense and would have an

opportunity to cure any deficiency. This is especially important since Palmco did not

claim that Mr. MacLuckie failed to plead a clear and concise statement of the act

complained of, a matter that would clearly inhibit the preparation of a defense. That

Mr. MacLuckie chooses not to seek relief in the form of monetary recoupment from any

violation he may prove, but instead defers to our judgment, renders his Complaint no less

viable or defensible. Thus, we believe that in reversing summary judgment, both parties’

substantive rights are secured.

6 These remedies include, but are not limited to, civil penalties, 66 Pa. C.S. § 3301, as well as license suspension or revocation. 52 Pa. Code § 62.113.

18

We also note that Mr. MacLuckie has not one, but two discovery requests

outstanding, a request in his March 24, 2014 Submission for a copy of Palmco’s

recording of his discussions with Palmco’s representatives and another separate request

presented in a letter dated April 10, 2014. In lieu of either answering or objecting to these

discovery requests pursuant to 52 Pa. Code § 5.342, however, Palmco has apparently

ignored them, responding, in reply to Mr. MacLuckie’s Exception that if material facts

are missing it is not for his lack of trying, that “Complainant had every opportunity to

bring the discovery issue to the attention of ALJ Cheskis at the appropriate time, but did

not do so.” R. Exc. at 9 n. 9. Palmco has an obligation to comply with our discovery

regulations. Palmco’s conduct of ignoring outstanding discovery and effectively forcing

a pro se complainant to navigate a motion to compel or forever be denied the ability to

prove his case further convinces us, under Carlock, that Mr. MacLuckie should be

afforded his opportunity to orally testify in a hearing to his understanding of Palmco’s

variable pricing policy as Palmco’s representatives orally explained it to him.

Therefore, following Carlock, we believe it was error for the ALJ to

dismiss Mr. MacLuckie’s pro se Complaint without first providing him a hearing during

which he may further explain his position and testify to the facts underlying his

Complaint. Mr. MacLuckie has striven to navigate the pleading, discovery, and

prehearing motion stages with at least as much alacrity and success as Palmco. He

should be given the chance to obtain the discovery he seeks and the opportunity to prove

his Complaint.

With this resolution to Palmco’s challenge to the sufficiency of

Mr. MacLuckie’s Complaint, we turn our attention to whether, based upon the facts

averred so far, there is any doubt that a dispute over a material fact remains that must be

resolved in Mr. MacLuckie’s favor. We find there is.

19

Mr. MacLuckie clearly acknowledges that he contracted for a variable rate

with no ceiling. We agree with the ALJ that these material facts are not in dispute. We

disagree, however, that these are the only material facts averred by Mr. MacLuckie. The

OCA fairly summarized the outstanding material dispute as follows:

Mr. MacLuckie’s formal Complaint raises questions about the adequacy of this disclosure [under Palmco’s Sales Contract and Welcome Letter] in light of his conversations with Palmco representatives. Mr. MacLuckie avers that he contacted Palmco three times to find out about Palmco’s policy regarding the magnitude of variability month to month, not just the absolute maximum level of rates possible. These practices are at the heart of Mr. MacLuckie’s description of Palmco’s deceptive practice.

OCA Exc. at 7. We agree with Palmco and the ALJ that Palmco’s written documents

clearly identify the rate as introductory, variable, and unlimited. And on this basis we

agree with Palmco that its written marketing material is distinguishable from the marketer

information at issue in Herp v. Respond Power LLC, Docket No. C-2014-2413756 (Herp)

(involving an unclear written disclosure) relied on by the OCA. Palmco R. Exc. at 7 n. 5.

We also agree with the OCA, however, that Mr. MacLuckie’s Complaint

raises questions about the adequacy of Palmco’s oral disclosures. If, as averred by

Mr. MacLuckie, Palmco undermines the clarity of its written communications through

the oral information provided in response to telephonic inquiries to its customer service

representatives (a fact we believe is reasonably inferred from Mr. MacLuckie’s

averments), when Palmco encourages prospective customers to make such inquiries,

Palmco’s disclosure is potentially no less unclear, misleading, or deceptive than those in

Towne or Herp.

In this vein, Palmco may not be heard to complain that the OCA’s

suggestion regarding Mr. MacLuckie’s conversations with Palmco’s representatives are

20

“in some manner unstated by OCA” or “unsupported by any evidence demonstrating how

that might be the case” when it is precisely that evidence that Palmco has chosen not to

provide to Mr. MacLuckie by ignoring his discovery requests. Palmco’s oral

representations from its customer representatives are as subject to review for deceptive

practices as Palmco’s written Sales Contract and Welcome Letter, particularly when

those written materials encourage applicants to “call . . . and speak to one of our

Customer Service Representatives.” Palmco Answer, Exhibit C (Palmco Welcome

Letter).

While no one could have predicted the extreme cold wrought by last

winter’s weather, clearly Mr. MacLuckie undertook to investigate directly with Palmco

how substantial his exposure may be under Palmco’s variable rate practices. Because

residential consumers in general are not necessarily experienced in gas procurement and

pricing practices, it is all the more important that they be able to rely on all information

from their prospective supplier through clear and unequivocal disclosures, whether oral

or written. If Mr. MacLuckie were led to believe through oral communications that the

possibility of an exorbitant increase was ridiculous because it would be against Palmco’s

business interests, that may have a bearing on the propriety of Palmco’s marketing

practices. He should be entitled to an opportunity to prove that fact. Moreover, the

apparent disagreement about how Mr. MacLuckie contracted for service, with or without

a TPV, may also shed light on what facts, and from whom, the Complainant was advised

regarding the risks of a variable rate. These are material facts, or reasonable inferences

therefrom, that remain in dispute and warrant a hearing on the merits.

While in Towne we recognized that consumers must take responsibility for

their own actions, we also recognized that the behavior of all market participants,

including our competitive providers, is important to ensure the development of a robust

market through informative and reliable marketing practices. As we stated then:

21

We also find the conduct by GAP to be potentially detrimental to the ongoing enhancements and the ultimate success of Pennsylvania’s retail electric market. As we have stated in prior cases, we strongly believe the competitive market can provide consumers with a variety of electric supply products and services, and that consumers do bear some responsibility to make choices that are appropriate for their individual circumstances. However, for those market forces to work, this Commission must continue to send a clear message to [competitive suppliers] that the egregious and deliberate behavior utilized in this case, including the use of potentially misleading statements that could result in slamming, will not be tolerated.

In cases where this Commission finds that [competitive suppliers] need increased oversight to ensure adequate compliance with our Regulations and the Code, the Commission has imposed conditions on [] licenses.

Towne at 22 (emphasis added).

This proceeding appears to be precisely the type of action under Carlock in

which we should afford the pro se Complainant the opportunity of a hearing at which he

may explain his understanding of Palmco’s offer, the basis for it, how he contracted for

service, with whom he spoke, and the information he was provided – in sum, what he

relied on and why. These material facts, derived from oral communications beyond the

information relied upon by Palmco in its written materials, are all on, or alluded to on, the

record before us and are not at all free from doubt. Our Regulations regarding consumer

protection provide that “[a] supplier . . . [m]ay not make false or misleading

representations including misrepresenting rates or savings offered by the supplier.” 52

Pa. Code § 111.12(d)(2). Further, Section 111.3 provides that a supplier may use an

agent to conduct marketing or sales activities in accordance with applicable Commission

rules, regulations, and orders but that a supplier may be responsible for representations

made by an agent in the course of sales and marketing contacts with a Complainant. 52

22

Pa. Code § 111.3. On this record, we cannot conclude that there are no material facts in

dispute and that Palmco is entitled to judgment as a matter of law.

We note, however, that the purpose of this proceeding is to allow

Mr. MacLuckie the opportunity to address the facts resulting from his contractual

undertaking with Palmco. That is, if Mr. MacLuckie believes that information provided

by Palmco or any of its representatives affected his decision to agree to a variable rate,

the burden will be on him to provide evidence of those facts at a hearing. While we

acknowledge Mr. MacLuckie’s concern for any similarly situated customers, the purpose

of this proceeding is to allow Mr. MacLuckie to develop his Complaint and not to

investigate Palmco’s practices generally as they may or may not have affected others.

The ALJ is correct that this is not a class action. At the conclusion of the proceeding, if

we find that Palmco violated the Code, our Regulations, or Orders in its dealings with

Mr. MacLuckie, we will exercise our discretion to impose any and all remedies available

to us under our enabling legislation and regulations.

Conclusion

For the foregoing reasons, we will grant the Exceptions in part, reverse the

Initial Decision which dismissed the Complaint, and remand this proceeding to the Office

of Administrative Law Judge for further proceedings consistent with this Opinion and

Order; THEREFORE,

IT IS ORDERED:

1. That the Exceptions filed by William MacLuckie on June 25, 2014,

are granted in part consistent with this Opinion and Order.

2. That the Exceptions filed by the Office of Consumer Advocate on

July 10, 2014, are granted in part, consistent with this Opinion and Order.

23

3. That the Initial Decision of Administrative Law Judge Joel

H. Cheskis issued on June 20, 2014, is reversed.

4. That the “Motion to Dismiss” filed by Palmco Energy PA, LLC, on

April 28, 2014, is denied.

5. That this proceeding is hereby referred to the Office of

Administrative Law Judge for such additional proceedings as may be deemed necessary.

BY THE COMMISSION,

Rosemary ChiavettaSecretary

(SEAL)

ORDER ADOPTED: December 4, 2014

ORDER ENTERED: December 4, 2014

24