Tentative Default Order [40 Pa.B. 688]
[Saturday, January 30, 2010]Public Meeting held
January 14, 2010Commissioners Present: James H. Cawley, Chairperson; Tyrone J. Christy, Vice-Chairperson; Kim Pizzingrilli, Joint Statement; Wayne E. Gardner, Joint Statement; Robert F. Powelson
Pennsylvania Public Utility Commission, Law Bureau Prosecutory Staff v. Able Co., LTD.; C-20042415; A-120025 Tentative Default Order By the Commission:
On July 31, 2009, the Law Bureau Prosecutory Staff filed an Amended Formal Complaint against Able Co., LTD. (the Respondent), a gas utility certificated at A-120025. In the Complaint, Prosecutory Staff charged that the Respondent committed numerous violations of the Public Utility Code, the Commission's regulations and gas safety regulations contained in the Code of Federal Regulations (CFR). The CFR violations were discovered during a gas safety inspection on September 9, 2003. Since that time, the Respondent has yet to advise the Commission that it has completed any of the directives contained in the Gas Safety Division's non-compliance letter. In addition, the Formal Complaint alleged that the Respondent has failed to pay outstanding assessments and has failed to file annual assessment reports since 1990. Lastly, the Respondent has failed to file annual reports since 1995 and pay the accompanying penalties assessed in previous default orders relating to Respondent's failure to file annual reports.
As a result of Respondent's numerous and persistent violations, Prosecutory Staff sought a total civil penalty in the amount of $167,000 as well as $3,100 in outstanding penalties. In addition, the Prosecutory Staff sought an order directing Respondent to file all outstanding annual and assessment reports. Respondent was given 20 days from the date of service of the Complaint to file its answer.
It is important to mention that in addition to the outstanding complaints and penalties mentioned in the Formal Complaint, Respondent's compliance history includes a Default Order at C-2008-2036244 which resulted in a $1,000 civil penalty for Respondent's failure to file its 2006 Annual Report. In addition, at C-2009-2130646, a Formal Complaint was instituted against Respondent for failure to file its 2007 annual Report. The Commission first attempted to serve Respondent on September 17, 2009. The Commission's second attempt to re-serve Respondent is dated November 19, 2009.
On July 27, 2009, the Deputy Sheriff of Jefferson County made personal service of the Complaint and Notice to Plead on Michael Harju, chief executive officer and statutory agent of the Respondent. In addition, the Commission attempted to serve the Respondent by certified mail on or about August 6, 2009, which was returned unclaimed on September 2, 2009. The Commission then re-served the Complaint to the Respondent by First Class Mail on or about September 11, 2009, which was not returned.
We note that the only address for Respondent on file with the Commission is a P. O. Box. A physical address is not listed for Respondent. Several Formal Complaints and Default Orders sent by certified mail to Respondent for various violations have been returned to the Commission by the post office as unclaimed. The fact that Respondent has a long history of refusing to claim certified mail necessitated personal service in this case.
To date, more than 20 days have passed since service of the Complaint. No answer to the Complaint has been filed. No civil penalties or assessments have been paid and no annual or assessment reports have been filed on behalf of the Respondent. Accordingly, a Tentative Default Order sustaining Prosecutory Staff's Amended Formal Complaint and granting the requested remedy is appropriate in this case.
The Commission puts the industry on notice that we will not hesitate to invoke our authority under the Public Utility Code to ensure timely compliance with our regulations and orders including the ordering of such other remedy as the Commission may deem appropriate. 66 Pa.C.S. §§ 504, 505, 506 and 3301. Based on Respondent's failure to file an answer to the Complaint or file its outstanding annual and assessment reports, we conclude that a civil penalty in the amount of $170,100 is in the public interest. Furthermore, the Commission may take other appropriate action, including the imposition of further penalties under Section 3301 of the Pennsylvania Public Utility Code, if Respondent seeks relief from this Default Order; Therefore,
It is Ordered That:
1. The allegations in the Law Bureau Prosecutory Staff's Amended Formal Complaint filed on July 31, 2009, are deemed admitted and the said Complaint is thereby sustained.
2. Able Co., LTD. is hereby directed to file all of its outstanding annual and assessment reports.
3. Able Co., LTD. is hereby directed to pay the outstanding fines instituted at C-20027732, C-20066097 and C-20077707 in the amount of $3,000. Said payment shall be made by certified check payable to the Commonwealth of Pennsylvania and presented to the Commission within 20 days of the date of the entry date of the Commission's order.
4. Able Co., LTD. is hereby directed to pay a civil penalty in the amount of $3,000 for failure to file its annual assessment reports since 1990 in violation of 66 Pa.C.S. § 501(c). Said payment shall be made by certified check payable to the Commonwealth of Pennsylvania and presented to the Commission within 20 days of the date of the entry date of the Commission's order.
5. Able Co., LTD. is hereby directed to pay a civil penalty in the amount of $3,000 for failure to file its annual reports since 1995 in violation of 66 Pa.C.S. § 504. Said payment shall be made by certified check payable to the Commonwealth of Pennsylvania and presented to the Commission within 20 days of the date of the entry date of the Commission's order.
6. Able Co., LTD. is hereby directed to pay a civil penalty in the amount of $1,000 for failure to comply with a Commission order directing payment of a penalty in the amount of $100 at C-00014930 in violation of 66 Pa.C.S. §§ 510(c) and 3301. Said payment shall be made by certified check payable to the Commonwealth of Pennsylvania and presented to the Commission within 20 days of the date of the entry date of the Commission's order.
7. Able Co., LTD. is hereby directed to pay a civil penalty in the amount of $160,000 for the various violations to the Commission's Gas Service regulations committed by Able Co., LTD as delineated in the Amended Formal Complaint filed under this Docket.
8. The total civil penalty that Able Co., LTD. is directed to remit to the Commonwealth of Pennsylvania is $170,100.
9. Able Co., LTD. may not claim or include any amounts imposed under this Default Order as a recoverable expense in any future rate proceeding.
10. The Secretary serve a copy of this Default Order upon the Office of Consumer Advocate, the Office of Small Business Advocate, the Office of Trial Staff, and the Attorney General's Bureau of Consumer Protection, and also cause a copy of this Default Order to be published in the Pennsylvania Bulletin with a 20-day comment period.
11. If no objection or comments are filed with the Commission under this Docket within the 20-day comment period, the Default Order shall become final.
JAMES J. McNULTY,
Secretary[Pa.B. Doc. No. 10-210. Filed for public inspection January 29, 2010, 9:00 a.m.]
