Pennsylvania House, Senate Pass Concurrent Resolution Requiring End Of Governor's COVID State Of Emergency; Gov. Claims Authority To "Disapprove" Resolution

Governor's State Of Emergency Had Been Cited In PUC's Prohibition On Door to Door Marketing; Prohibition In Effect For "Pendency" Of Emergency Declaration

June 9, 2020

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Reporting by Paul Ring • ring@energychoicematters.com

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Both the Pennsylvania Senate and House have passed concurrent resolution No. HR 836 which terminates the disaster emergency declared on March 6, 2020, as later amended and renewed, by Governor Wolf in response to COVID-19

The concurrent resolution notes that 35 Pa.C.S. § 7301(C) authorizes the general assembly by concurrent resolution to terminate a state of disaster emergency at any time

The concurrent resolution notes that 35 Pa.C.S. § 7301(C) provides that upon the termination of the declaration by concurrent resolution of the general assembly, "the governor shall issue an executive order or proclamation ending the state of disaster emergency," and that, therefore, the Governor is compelled to issue an order terminating the emergency declaration

However, a spokesperson for Wolf said that governor has the authority to "disapprove" the resolution, citing Article III, Section 9 of the state constitution. Wolf's office said that the resolution does not terminate the disaster declaration. The issue is expected to litigated by the branches of government in state court.

The Governor's office also noted that various business closure and re-opening measures required by the Secretary of Health are being undertaken under the Disease Prevention and Control Act of 1955, not the emergency declaration

However, the Pennsylvania PUC, in issuing a March 16 order prohibiting door-to-door marketing by retail energy suppliers, cited the Governor's March 6, 2020 emergency declaration, and not any issuance from the Secretary of Health

The PUC, in its door to door prohibition order, also cited Section 1501 of the Public Utility Code, 66 Pa. C.S. § 1501, with such statute providing that every "public utility" has a duty to furnish and maintain adequate, efficient, safe, and reasonable service as is necessary for the accommodation, convenience, and safety of its patrons, employees, and the public. Generally, under Title 66, the term "public utility" does not include electric generation supplier companies, except for the limited purposes as described in sections 2809 (relating to requirements for electric generation suppliers) and 2810 (relating to revenue-neutral reconciliation).

The PUC's March door to door prohibition order specifically provided that, "all electric generation suppliers and natural gas suppliers subject to the Commission's jurisdiction are prohibited from engaging in any door-to-door, public event and in person sales and marketing activities during the pendency of the Proclamation of Disaster Emergency, or unless otherwise directed by the Commission."

"[A]ll electric generation suppliers and natural gas suppliers subject to the Commission's jurisdiction are prohibited from engaging in any door-to-door, public event and in person sales and marketing activities during the pendency of the Proclamation of Disaster Emergency consistent with this Emergency Order," the PUC's March door to door prohibition order further stated

In a previously reported June order allowing in-store marketing by retail suppliers to resume (see story here), the PUC again affirmed that all other provisions of its March 16 order prohibiting all other door-to-door, public event, and in-person sales and marketing activities by retail suppliers shall remain in effect, "during the pendency of the Proclamation of Disaster Emergency, or unless otherwise directed by the Commission."

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