                            [J-66-2018] [MO: Mundy, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


 HIKO ENERGY, LLC,                             :   No. 39 EAP 2017
                                               :
                      Appellant                :   Appeal from the Order of
                                               :   Commonwealth Court entered on
                                               :   June 8, 2017 at No. 5 CD 2017
               v.                              :   affirming the Order entered on
                                               :   December 3, 2015 by the
                                               :   Pennsylvania Public Utility
 PENNSYLVANIA PUBLIC UTILITY                   :   Commission at No. C-2014-2431410
 COMMISSION,                                   :
                                               :   ARGUED: September 26, 2018
                      Appellee                 :


                                  DISSENTING OPINION


JUSTICE DONOHUE                                                DECIDED: June 5, 2019

       I dissent. This Court granted allocatur to address three issues, including the

following:

       (1)    Whether the $1,836,125.00 penalty was so grossly
              disproportionate to the penalties the Commission has
              approved for similar or more egregious conduct as to violate
              the Excessive Fines Clause of the Pennsylvania and U.S.
              Constitutions.

HIKO Energy, LLC v. Pennsylvania Pub. Util. Comm'n, 176 A.3d 235 (Pa. 2017). This

issue presents a constitutional question regarding the excessive fines clauses of the

Pennsylvania and federal constitutions. In my view, this issue must be addressed and

decided by this Court in our resolution of this appeal.

       Rather than resolving the legal issue presented, the Majority shifts the focus to an

entirely different legal issue, namely whether HIKO waived the constitutional issue below.
This Court did not, however, grant allocatur to consider this issue of waiver, and we did

not do so despite our full knowledge that the PUC had contested whether HIKO had

preserved the constitutional issue in the Commonwealth Court and that the waiver issue

was a central issue in that court’s disposition of the case. The Commonwealth Court is

well suited to address issues of waiver, for which there is already a well-established and

comprehensive body of case law. In contrast, this Court is best suited to resolve the

constitutional issue of first impression on which we granted allocatur.

       If the Court had intended to decide the issue of waiver, we could have granted

allocatur to review it. We did not. The waiver issue is not encompassed within our grant

of allowance of appeal and is not an issue before the Court in this appeal. I must therefore

dissent, as I am of the view that this Court should proceed to decide the constitutional

issue on its merits by published opinion.

       Chief Justice Saylor joins this dissenting opinion.




                             [J-66-2018] [MO: Mundy, J.] - 2
