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Initial Decision Issued in PUC Proceeding Addressing Petition to Revoke Glacial Energy License An initial decision from a Pennsylvania ALJ would deny a petition to revoke the electric supplier license of Glacial Energy of Pennsylvania, Inc.
The Pennsylvania PUC's Bureau of Investigation and Enforcement (Staff) had sought revocation of the license, alleging that Glacial Energy of Pennsylvania, Inc. had failed to make certain disclosures regarding its principals' history on its license application, and that such disclosures were required.
Specifically, Staff had alleged that the revocation of Franklin Power's REP certificate in Texas should have been disclosed in Glacial Energy of Pennsylvania, Inc.'s license application, due to the prior ownership interest of Gary Mole, Glacial COO, in Franklin Power.
However, the initial decision would find that such disclosure was not required.
Based on the wording of the application and applicable statute and rules, the ALJ concluded that in order to accept I&E's argument, "one must conclude that Mr. Mole and Franklin are either 'affiliates' or 'predecessors' of Glacial ... I conclude that Mr. Mole and Franklin are neither."
Neither the statutes nor the regulations governing electric generation suppliers define either "affiliates" or "predecessors," the ALJ noted.
Accordingly, the ALJ refers to Black's Law Dictionary, which defines an affiliate company as a company effectively controlled by another company. It further states that affiliated companies are corporations which are related as parent and subsidiary, characterized by identity of ownership of capital stock.
"Using this definition, Glacial is not an affiliate of either Franklin or Mr. Mole. Glacial is an affiliate of Glacial Energy Holdings. Franklin does not control Glacial. Franklin is not a parent or subsidiary of Glacial. Glacial listed its affiliated companies in response to Question 19 on its EGS application, as stated above. Mr. Mole is an officer of Glacial, not an affiliate," the ALJ said.
Similarly, Black's Law Dictionary defines a predecessor as one who has gone before. It further states that a predecessor applies to a corporate body in the same sense that the term ancestor is applied to a natural person.
"Using this definition, Franklin is not a predecessor of Glacial. Franklin did not merge with Glacial. Glacial did not purchase Franklin's stock. Mr. Mole is not a predecessor of Glacial as defined above," the ALJ held.
"Had the Commission wished to require more disclosure from EGS applicants it could have used more inclusive terms in its application forms. For example, the Commission could have used the broader term 'affiliated interest' as defined at 66 Pa. C.S. §2101 instead of the term 'affiliate' in Question 16 of its EGS application form and in the information required in an application by 52 Pa. Code §54.33. The Commission did not do this," the ALJ said.
"I cannot find that Glacial violated the Public Utility Code or Commission regulations by failing to disclose Mr. Mole's involvement with Franklin or the proceedings against Franklin in response to Question 16 of its EGS application. Question 16 of the EGS application as it is worded does not require that information. Glacial provided the information required by Question 16 of its EGS application. Glacial is entitled to judgment as a matter of law," the ALJ said.
In response to another Staff argument, the ALJ further noted that, "[t]here is nothing in the regulation that requires an EGS applicant to provide a complete resume of each of its officers in order to demonstrate the applicant's financial fitness."
"I cannot find that Glacial violated the Public Utility Code or Commission regulations by failing to disclose Mr. Mole's involvement with Franklin as part of his resume in response to Question 19B of its EGS application. Question 19B of the EGS application as it is worded does not require that information. Glacial provided the information required by Question 19B of its EGS application. Glacial is entitled to judgment as a matter of law," the ALJ said.
"In summary, I conclude that, as a matter of law, neither the Commission's statutes and regulations nor the application for EGS authority require Glacial to disclose Mr. Mole's involvement with Franklin. Since there is no such requirement, Glacial did not violate either 66 Pa. C.S. §2809(b) [or] 52 Pa. Code §1.35(c)," the ALJ said, granting Glacial's motion for summary judgment and dismissing Staff's petition.
Parties may file exceptions to the initial decision, which would prompt a review of the initial decision by the Commission.
Docket C-2012-2297092
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April 24, 2013
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