July 2022 - MPL Law Firm

PennDOT HOP and Transmission Lines

The PennDOT Highway Occupancy Permit (“HOP”) is one of the most common third-party approvals during the land development process. If a state route is needed for an access road, it makes sense that PennDOT wants to have the final say when it comes to the design specifics of the connection to that state route. We understand that PennDOT controls connections to state routes, but does PennDOT control everything that interacts with state routes? What about transmission lines that cross a state route? This question took a little bit of digging.

The first threshold question is whether the state route is a limited-access highway. If the state route is a limited access highway, a HOP will be required no matter what. Here is a map where you can filter for limited-access highways. The second question, assuming the state route is not a limited-access highway, concerns the location of the utility poles supporting the transmission lines. If the utility poles are within the state route’s right-of-way, a HOP will be required. If the utility poles are not within the state-route’s right-of-way, a HOP will not be required. In the latter case, there is no disturbance of the state right-of-way and therefore no requirement to get a HOP from PennDOT. The electrical lines are only passing the air space above the PennDOT right-of-way. This is not a waiver but an exception from the permit requirements.

Take a look at page 104 from the PennDOT Highway Occupancy Permit Operations Manual here, which explains this scenario and other similarly related scenarios. The link for the full manual and other helpful information can be found here.

COMMUNITY SOLAR UPDATE: We all anxiously await any positive movement on the various PA community solar bills. Here is the most recent status of House Bill 1555 and here is the most recent status of Senate Bill 472.

If you have other specific questions about transmission lines and HOP, other third-party approvals, renewable energy, or anything related or unrelated, please don’t hesitate to call our firm at (717-845-1524) or email Andy Miller (amiller@mpl-law.com) or Cory Dillinger (cdillinger@mpl-law.com) with any questions or comments.

It’s Time to Play the Blame Game

Indemnification, limitations on liability and reps and warranties. What are these concepts and why are they important? If you have been through a transaction in the past or negotiated a complex agreement, you know that these provisions can sometimes be the most negotiated points. It’s almost like you are playing the blame game before something actually happens.

Below are quick descriptions of each and why they are important:

Indemnification Clause – Put simply, this clause transfers or assigns risks between parties to an agreement. A good example of this would be when you rent a car. Let’s say you rent the car, decide to play demolition derby and you end up hurting someone else or causing damage to another person’s property. When that person sues you and the rental car company, the rental car company points to the indemnification clause and says the defense is on you not them. I know this is overly simple, but it is a way for both parties to define what risks they are willing to take on and not take on in the use of a product or service. In the transaction space, it is typically used to set a timeframe as to when and who is liable for actions against the buyer and seller of acquired assets or company.

Limitation of Liability – This clause defines the amount of liability the parties to an agreement are exposed to in the event of a legal action related to the contract. So, if a dispute arises between the parties because of a key term of the agreement, then the limitation of liability will set a good financial starting point for settling the dispute.

Reps and Warranties – Representations are statements of fact by one or the other party in an agreement. Warranties are promises by one or the other party that the representations are in fact true. So, for example, if you buy a business, you will typically ask that the seller actually owns it (seems silly, but you would be surprised how often it is not the case). The Seller would state this in the Agreement. The Seller would also promise that it is true. If you close on the transaction and then another party provides proof that they in fact owned the business, the Seller has violated its reps and warranties and the Buyer can move into a legal action to enforce their rights against the Seller. Again, this is overly simplistic, but it gives you the basic gist of the importance of this clause.

Bottom Line – These clauses are important because they help to define who is really at fault in a contract dispute prior to an actual dispute and how you will handle its resolution. That way you at least have set the rules for the blame game if something happens.

As always, be sure you are consulting with your professional business advisors before you agree to the terms of these vital agreement clauses.

Helpful Resource Pages

As always, please don’t hesitate to email myself (jsanders@mpl-law.com), Andy Miller (amiller@mpl-law.com), Christian Miller (cmiller@mpl-law.com), Erik Spurlin (espurlin@mpl-law.com) or anyone in our office with questions or comments.  

Home field advantage applies to more than just sports

I could not think of a better topic to celebrate the founding of our Country than the exciting contractual topics of Choice of Law and Jurisdiction (okay, I am sure there are better things to write about). Essentially, these two boilerplate clauses control the law that governs a contract and the forum (i.e., the location) that has jurisdiction to adjudicate a dispute. Next time you review a vendor contract from an out of state provider, take a look at those two provisions. I think you will be a bit surprised. Below are some key considerations for each:

Choice of Law

How friendly or hostile is the type of law to you, your industry or potential issues that arise in your line of work? For example, if you are planning to sell retail goods in the State of California, you better understand their consumer protection laws. It can be an expensive dispute if you don’t know the local laws.
How developed or sophisticated are the laws of the jurisdiction chosen for your industry or that of your vendor? For example, interstate lenders will typically look to apply laws from States like New York because they have a large base of commercial and financial companies and well-developed legal precedent in those industries.

Choice of Forum

Does your contract have an exclusive or mandatory forum requirement? In this case, the contract will say that disputes can only be brought in the courts of a particular state, county, city and/or Federal district. If you are in Pennsylvania and your vendor is in Alaska and has a mandatory forum clause, this can be a very expensive legal bill for you if a dispute arises.
Does your contract have a non-exclusive forum clause? While this seems to be a better option because it provides more flexibility, remember that both sides can choose where to file an action.
Does your choice of forum have a well-developed court system to handle your type of dispute? For example, large corporations will choose Delaware as their choice of Forum because their Court of Chancery (i.e., Business Court) is well versed in business disputes.

These are just a few of the considerations when looking at these two important boilerplate principles. In general, you will find that these provisions are like sports competitions. Playing (or litigating) on your home turf typically gives you an advantage over your opponent. Please make sure that you seek advice from your professional business advisors if you have questions.
Next week we will look at indemnification, limitations on liability and warranties.

Enjoy the long weekend!

Here are a few other things that may be of interest:

Employee Retention Credits – Its Not Too Late: What you need to know about claiming the tax credit in 2022 (7/6 @ 12pm)

Helpful Resource Pages