2022

First Quarter

No cases reported.

Second Quarter

Peoples Natural Gas v. Pennsylvania Public Utility Commission

Docket No. 1024 C.D. 2020, Decided April 13, 2022

The PUC’s Bureau of Audits March 13, 2019, Report on Peoples Natural Gas (PNG) made several findings. In examining two annual reconciliation periods for the PNG PGC Rider ended September 30, 2014, and September 30, 2015, the Bureau of Audits concluded that “several filing preparation errors were made that resulted in an overstatement of PGC Revenues and Expenses.

The PUC adopted the Bureau of Audits Report and directed Peoples Natural to file an implementation plan within sixty days to correct the deficiencies, issue refunds and interest to Peoples Natural customers.  On May 10, 2019, PNG filed a Petition for Reconsideration of the April 26 Order and, on May 23, 2019, the PUC granted that Petition.

On September 20, 2020, the Commission denied Peoples Natural’s Exceptions to the Recommended Decision’s ruling on all the Findings in the Audit Report

PNG appealed the PUC Order of September 17, 2020. On appeal, PNG asserted that the PUC erred as a matter of law, abused its discretion, or its opinion and order lacks substantial evidence when it approved 4 audit findings. PNG agreed that it made errors in gas cost filings that overstated both gas costs and revenues for recovery of gas costs, and that the errors were unintentional. The dispute concerns how to calculate interest on the corrections. The Company contended that the PUC’s failure to include interest on under-collections contravenes the express language in Section 1307(f)(5). PNG further asserted asserts that because the conjunctive “and” instead of the disjunctive “or” is used in this section, the PUC must apply interest to both refunds to and recoveries from customers.

In its’s Opinion and Order dated April 13, 2022, the Commonwealth Court affirmed the PUC decision. The Court held that it found no error in the PUC’s interpretation of Sections 1307 and 1318 of the Code as applied to these audit findings.

Eileen Walden v. Pennsylvania Public Utility Commission

Docket No. 1335 C.D. 2020, Pa. Cmwlth. Unpub., 2022 WL 1132092, Decided April 18, 2022

The Commonwealth Court issued a Memorandum Opinion (unreported) that affirmed the PUC’s Order denying and dismissing Ms. Walden’s complaint that PECO had incorrectly charged her for electric service.  The Court determined the Commission committed harmless error in excluding two of Ms. Walden’s exhibits as evidence when she offered them at the hearing.  The Court found that this error was not reversable because the pleadings were also in other numbered exhibits admitted into evidence.  Thus, the excluded exhibits were redundant and cumulative.  Further, the Court held that there was no error in excluding from the record post-hearing letters to the Administrative Law Judge when the record had closed and no motion to reopen the record had been filed.  Finally, the Court held that there was no error in finding Ms. Walden failed to carry her burden of proving she had been incorrectly billed or in failing to schedule and hold a prehearing conference prior to the evidentiary hearing in this matter.

Waterford Township v. Pennsylvania Public Utility Commission

Docket No. 689 C.D. 2021, Decided April 21, 2022

This matter involved a Declaratory Order sought by Waterford Township

On November 12, 2019, Armstrong filed a Petition for Declaratory Order, which asked the Commission to declare that, as a public utility providing certificated services under the Commission’s jurisdiction, Armstrong need not pay the permitting fees charged by the Township.

This matter arose when Armstrong Telecommunications Inc. a telecommunication utility applied to the Township for road occupancy permits for fifteen ROW locations. In October 2019, the Township issued Armstrong the permits with the condition that Armstrong pay related permitting fees, including an application fee, inspection fee, location fees, and a refundable bond for each of the locations.

On or about February 19, 2021, The Commission decided (in a split decision) that determined that the Township application fee was not preempted by the Code but instead governed by the BCL, the inspection of public utility facilities fell under its exclusive jurisdiction and the pole inspection fees and site inspection fees were preempted. The Commission declined to address whether the “outside of pavement and shoulder” inspection fee or the refundable bond fee came under the Commission’s exclusive jurisdiction.

Waterford Township sought a review of the Declaratory Order entered on February 19, 2021, by the PUC.

In its decision dated April 21, 2022, Commonwealth Court reversed the Commission’s Declaratory Order.  The Court held that under Section 1511(e) of the BCL and Section 2322 of the SCTC, the General Assembly has authorized municipalities to collect reasonable permitting fees and that such fees do not constitute utility regulation. The Court also rejected the Commission’s attempt to recast the Township’s inspection and location fees as the inspection of public utility facilities. They are not maintenance fees and are not intended to facilitate inspection of utility facilities for Code compliance or enforcement of Code regulations.

Transource Pennsylvania, LLC, and PPL Electric Utilities Corporation v. Pennsylvania Public Utility Commission

Docket No. 689 C.S. 2021, Pa. Cmwlth. Unpublished Memorandum Opinion - May 5, 2022

On May 24, 2021, Transource PA and PPL filed a petition with Commonwealth Court for review of a PUC decision to deny Transource PA’s two siting applications for high voltage transmission lines to be constructed in Franklin and York Counties, Pennsylvania pursuant to an Independence Energy Connection (IEC).  Transource PA and PPL also argue the Commission erred in rescinding Transource PA’s certificate of public convenience (CPC).  In their petition, Transource and PPL argued that the Commission erred as a matter of law in its interpretation of Section 1501 as requiring the IEC Project to be both necessary and (emphasis added) proper when the provision requires a proposed facility to be necessary or proper for service to the public.  They also argued that the Commission erred in its interpretation of Section 57.76(a) as requiring Transource to prove that the IEC Project was “reasonable and necessary and in the public interest.”

In its decision dated May 5, 2022, the Commonwealth Court held that the Commission’s Opinion and Order contained no clear error in the determination that Transource did not meet its burden of proof under Section 1501 of the Public Utility Code and Section 57.76(a) of the Commission’s regulations on the Siting Applications. The court also held that the Commission did not deviate from the necessary or proper standard in Section 1501. The Court also held that the Commission did not violate its obligations under Section 2805(a) of the Public Utility Code to work with regional transmission planning groups and the Federal Government when it denied the Siting Applications and Transource’s provisional CPC under Pennsylvania law.

PWSA v. Pennsylvania Public Utility Commission

Docket No. 689 C.D 2020, Decided June 26, 2022

This matter involves residency requirement.

In 2018, the PUC assumed jurisdiction over Pittsburgh Water & Sewer Authority (PWSA) through an act of the General Assembly. After this, PWSA filed a Compliance Plan for Commission approval as part of the Commission’s “Implementation of Chapter 32” proceeding. Among other things, the Compliance Plan identified the PWSA’s residency requirement for employees. This policy required all employees to live within the City of Pittsburgh, except those specifically exempted from the requirement by the PWSA’s Executive Committee.

On March 26, 2020, the Commission ordered PWSA to remove the residency requirement from its Plan.  On June 18, 2020, the Commission found that the residency requirement caused staffing shortages that could impede the PWSA’s ability to comply with the requirements of Section 1501 of the Public Utility Code; therefore, it was contrary to the public interest. The Commission also held that the residency requirement was arbitrary and capricious.

On July 20, 2020, the PWSA filed a Petition for Review in the Commonwealth Court challenging the Commission’s Orders.  On July 23, 2021, the PWSA’s Board of Directors adopted a new residency requirement. This new policy, which expanded the geographic boundaries of the former residency requirement, has two aspects: (1) “line” employees can reside in the City or any of the 36 municipalities surrounding the City; and (2) any employee in a position considered to be senior management and above can live in Allegheny County or any of the surrounding counties (10 in total).

On May 27, 2022, PWSA’s Board adopted a Resolution revising its residency requirement to permit employees to reside anywhere in Allegheny County.

On June 15, 2022, the PWSA filed a Praecipe for Discontinuance in the case.  On June 26, 2022, a Notice of Discontinuance of Action was granted by Commonwealth Court.

Third Quarter

Walden v. Pennsylvania Public Utility Commission

Docket No. 1335 CD 2020, Decided July 7, 2022

This matter involves a high billing dispute.

Eileen Walden filed a Complaint against PECO Energy Company on July 9, 2019. Ms. Walden challenged her high electricity bills from PECO.  A hearing on the matter took place on or about October 23, 2019.  In the Initial Decision issued on or about March 5, 2020, the ALJ denied the Complaint.  On May 7, 2020, Ms. Walden filed Exceptions.  On November 19, 2020, the PUC denied the Exception and adopted the ALJ’s Initial Decision.

Ms. Walden filed a pro se, petitions for review of the November 19, 2020, Opinion and Order with Commonwealth Court to review the matters. Ms. Walden argued that certain document of hers should have been admitted to the official record. In the Opinion that was not reported, Commonwealth Court grant in part (2 Exhibits should have been admitted to the record) and deny in part Ms. Walden’s Application for Relief and grant in part and deny in part the Commission’s Application to Strike. The Court held that no due process violation or error in the Commission’s findings that Ms. Walden did not meet her burden of showing that PECO improperly billed Petitioner for the November 2017 through April 2018 period or violated the Code, its tariff, or the Commission’s Regulations or orders based on the Commission’s evidentiary weight determinations.

Ms. Walden filed an Application for Relief - Request for Reconsideration before the Commonwealth Court.

On June 29, 2021, Commonwealth granted the Application for relief.

On July 7, 2022, Commonwealth Court denied Ms. Walden’s Application for Panel Reconsideration.

Core Communications v. Pennsylvania Public Utility Commission, Verizon PA and Verizon North

US Middle District of PA 1:30-cv-01802, Date Decided August 8, 2022

Core Communications filed a complaint in federal court arguing the Commission’s adjudications of Interconnection Agreements between Core and Verizon were not based on substantial evidence, arbitrary and capricious, and inconsistent with federal law.

On October 2, 2020, Core filed a Complaint challenging the conclusions of the Commission (from Commission orders from 2016 and 2017).  In its 2016 Order, the Commission ordered Core to pay all invoices issued by Verizon on or after August 16, 2007, for intercarrier compensation. Core asserted that some of these invoices involve Verizon’s interstate claims, which the PUC does not have jurisdiction to adjudicate. Core asked the Commission to reconsider its decision. It agreed to do so, and on April 20, 2017, the Commission largely affirmed its 2016 Order. The Commission’s Order required Core to pay Verizon millions of dollars in past services.

Core amended its Complaint on November 3, 2020.  Core named three defendants in its Amended Complaint: (1) the Commission, (2) Verizon PA, and (3) Verizon North.  On April 21, 2021, the PUC filed a Motion for Summary Judgment in the matter.

In an Order dated August 8, 2022, the US Middle District Court, entered an Order based upon the decision by US Magistrate dated July 20, 2022, which denied Core Communications, Inc.’s motion for Summary Judgment and granted both Verizon North LLC and Verizon Pennsylvania LLC’s motion for Summary Judgments well as well as the Commission’s motion for Summary Judgment.

Twin Lakes Utilities, Inc. and Aqua Pennsylvania, Inc. v. Pennsylvania Public Utility Commission

Docket Nos. 1289 C.D. 2021 and 1359 C.D. 2021, Decided August 11, 2022

This case involved the acquisition of a water company by another water company pursuant to Section 529 of the Public Utility Code.  The Commonwealth Court affirmed the PUC’s Final Order directing the sale of Twin Lakes Utilities, Inc. to Aqua Pennsylvania, Inc. and directing the two parties to enter into negotiations regarding the sale.  The Court additionally affirmed the PUC’s order that Middlesex Water Company, a parent company of Twin Lakes Utilities, Inc., place $1.675 million into an escrow fund. Middlesex of its own volition entered the Pennsylvania utility marketplace thereby subjecting itself to the PUC’s jurisdiction.

Maria Povacz et al. v. Pennsylvania Public Utility Commission

Docket Nos. 34-45 MAP 2021, Decided August 16, 2022

This case involved installation of “smart” meters by EDCs in compliance with Act 129 of 2008 (66 Pa. C.S. § 2807(f)).  Four of PECO’s residential customers filed separate formal complaints before the Commission seeking to preclude PECO, an electric distribution company (EDC), from installing smart meters at their respective residences.  The customers argued that the installation was not a mandate under Act 129 and that the smart meters emit radio frequencies that would cause deleterious health effects if installed.  Thus, it would be unsafe and unreasonable service for PECO to install the meters at their residences in violation of the Public Utility Code.  The customers sought a Commission-ordered directive that they be allowed to keep their current “analog” meters and not have their service terminated.  These formal complaints were denied and dismissed by the Commission after hearings.  The residential customers of PECO appealed the Commission’s decisions, and the appeals were consolidated before the Commonwealth Court.

Ultimately, the Pennsylvania Supreme Court held that Act 129 mandates that EDCs furnish smart meters to all electric customers within the EDC’s service territory and that Act 129, when read in its entirety, does not allow for an accommodation of an opt out from having a smart meter installed.

The Supreme Court further held that although an electric customer with concerns may seek a different “accommodation” such as moving the meter from the wall of a residence to a utility pole or other building on the customer’s property, to obtain one, the customer must establish by a preponderance of evidence that installation of a smart meter violates the “reasonable and safe” standards under Section 1501of the Public Utility Code.  The Supreme Court held that the PECO customers failed to prove that PECO violated Section 1501; therefore, the PUC was not required to prescribe any remedial action.  The Court clarified that the use of a “conclusive causal connection standard” and the “preponderance of evidence” burden of proof for proving a violation under Section 1501 are appropriate.

Fourth Quarter

City of Lancaster v. Pennsylvania Public Utility Commission

Docket Nos. 251 2019, Opinion and Order entered October 11, 2022

City of Lancaster v. Pennsylvania Public Utility Commission, 251 CD 2019, Opinion and Order entered October 11, 2022

This matter involves the placement of gas meters.

On April 29, 2019, the City of Lancaster and other municipalities filed a Petition with Commonwealth Court which challenged the validity of Section 59.18 of the PUC’s Regulations 52 Pa. Code § 59.18, which, as amended by a Final Rulemaking Order adopted on May 22, 2014, mandated outdoor gas meter locations but permits a NGDC’s consideration of indoor gas meter locations when a gas meter is, in a building within a locally designated historic district.

In a decision issued on October 11, 2022, Commonwealth Court granted the City of Lancaster’s, the Borough of Carlisle’s, and the Borough of Columbia’s Application for Summary Relief. The Court also declared that Section 59.18 of the Pennsylvania Public Utility Commission’s Regulations, 52 Pa. Code § 59.18, as amended by the Final Rulemaking Order adopted on May 22, 2014, constituted an unconstitutional delegation of legislative authority, and is unenforceable.

On November 7, 2022, the Commission filed an appeal of the Commonwealth’s Court decision with the PA Supreme Court.

Walden v. Pennsylvania Public Utility Commission, Supreme Court 81 MM 2022 Date Decided December 22, 2022

Ms. Walden filed a Petition for Leave to File a Petition for Allowance of Appeal Nunc Pro Tunc to the PA Supreme Court. This petition was filed in response to her litigation matter against the PUC (in her original dispute with PECO).

On December 22, 2022, the Supreme Court denied Ms. Walden’s Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc.

Walden v. Pennsylvania Public Utility Commission

Supreme Court 81 MM 2022, Date Decided December 22, 2022

Ms. Walden filed a Petition for Leave to File a Petition for Allowance of Appeal Nunc Pro Tunc to the PA Supreme Court. This petition was filed in response to her litigation matter against the PUC (in her original dispute with PECO).

On December 22, 2022, the Supreme Court denied Ms. Walden’s Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc.