PUC "Unable To Determine" if Retail Supplier Properly Disclosed History in License Application, Remands Revocation Proceeding to ALJ

The Pennsylvania PUC, based on the current record, is "unable to determine" whether Glacial Energy of Pennsylvania, Inc. was required to disclose certain of Gary Mole's experiences in Texas on Glacial Energy of Pennsylvania's Pennsylvania electric supplier application.

The Pennsylvania PUC's Bureau of Investigation and Enforcement (I&E, or Staff) had sought revocation of the Glacial Energy of Pennsylvania license, alleging that Glacial Energy of Pennsylvania 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, an initial decision from an Administrative Law Judge found that such disclosure was not required.

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Addressing exceptions to the initial decision, the PUC found that there are still issues of material fact that need to be addressed in the proceeding, and therefore could not substantively rule on the exceptions to the initial decision.

"I&E and Glacial do not agree on, inter alia, Gary Mole's role with Franklin and Touchdown. Consequently, we find that there are issues of material fact that still need to be addressed in this proceeding," the PUC said.

"Moreover, I&E avers that it submitted un-rebutted testimony showing that Gary Mole was a director, shareholder, and involved in the day-to-day operations of Franklin, not merely an investor as Glacial contended. In support of its arguments, I&E references the testimony presented in its Statement Nos. 1, 2 and 3. However, the ALJ did not address these Statements in his Initial Decision. Finally, we note that some precedent suggests that, in at least some circumstances, a company that sells its assets to another company is considered a predecessor company. All-Pak, Inc. v Johnston and Exakt Technologies, Inc., 694 A.2d 347 (Pa. Super. Ct. 1997). Consequently, because there are unresolved issues of material fact we find that: (1) Glacial's Motion for Summary Judgment shall be denied; (2) we are unable to determine whether Glacial properly responded to Question 16 of the EGS Application; and (3) this matter shall be remanded to the OALJ for such further proceedings as may be warranted," the PUC said.

The PUC was further, "unable to determine whether Gary Mole's experiences in Texas should have been included in the resume provided in response to Question 19A of the EGS Application."

The PUC remanded the proceeding to the Office of Administrative Law Judge for such further proceedings as may be warranted.

C-2012-2297092