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Pa. ALJs Deny Motion to Strike Direct Energy Auction Proposal from FirstEnergy-Allegheny
Merger Case Email This Story September 30, 2010
Two Pennsylvania ALJs have denied West
Penn Power and FirstEnergy Corp.'s joint motion in limine to exclude from the record
in their merger proceeding before the PUC certain expert testimony filed on behalf
of Direct Energy Services.
FirstEnergy and Allegheny sought to strike Direct's testimony proposing changes to
the default service structure at the combined FirstEnergy and Allegheny Pennsylvania
utilities as a condition of the merger. In general terms, Direct proposed to remove
the utilities from the default service role, and to auction customers to competitive
suppliers (see full analysis in 8/18/10 issue).
FirstEnergy and Allegheny had argued that Direct's proposal is outside the scope
of the merger proceeding and that the PUC does not have the authority to order the
relief suggested by Direct Energy's witnesses in the context of the merger proceeding.
"It goes without saying that evidence is admissible into the record if it is relevant
to the resolution of the issues raised in an action, and is not cumulative, unduly
prejudicial, and confusing or would cause undue delay or waste time. A motion in
limine should only be granted where the evidence which the moving party seeks to
exclude is clearly irrelevant. Moreover, it is not appropriate to use a motion in
limine as a thinly disguised motion for summary judgment," the ALJs noted.
"Although we do not believe that it is appropriate to revisit the wisdom of the Commission's
approach to default service in the context of a merger proceeding, it does seem that
the testimony offered by Direct Energy is relevant to the issue of whether the merger
is 'likely to result in anticompetitive or discriminatory conduct . . . . which will
prevent retail electricity customers in this Commonwealth from obtaining the benefits
of a properly functioning and workable competitive retail electricity market," which
is a standard to be considered in merger proceedings, the ALJs confirmed.
"We also observe, however, that the issues raised by the Joint Applicants [Allegheny-FirstEnergy]
in their Motion are important ones. Our ruling on the Motion in Limine should not
be construed to accord any particular weight to the testimony offered by Direct Energy,"
the ALJs said.