2023

First Quarter

Energy Transfer and Pa. Pub. Util. Comm’n v. Rebecca Moss and Spotlight PA

Nos. 1700 and 1722 C.D. 2019, 288 A.3d 957 (Pa. Cmwlth. 2023), Decided January 20, 2023

On January 20, 2023, in a reported decision, the Commonwealth Court reversed the Office of Open Record’s (OOR) Final Determination regarding Commission records requested under the Right-to-Know Law, 65 P.S. §§ 67.101, et seq.  In its Final Determination, the OOR held that the Commission and Energy Transfer did not demonstrate that records are confidential security information (CSI).  The OOR also held that records must be disclosed under Section 335(d) of the Public Utility Code, 66 Pa.C.S. § 335(d), to the extent that the records formed the basis of the Bureau of Investigation and Enforcement’s (BIE) decision to file a complaint.  The Commonwealth Court reversed the Final Determination, citing the Pennsylvania Supreme Court’s decision in Pa. Pub. Util. Comm’n and Energy Transfer v. Friedman, 265 A.3d 421 (Pa. 2021).  The Commonwealth Court held that the OOR lacked authority to determine that records were not entitled to be designated as CSI and that challenges to a CSI designation must come before the Commission.  The Court also held that the OOR erred in determining that the Commission was required to disclose records under Section 335(d).  The Court explained that the mere filing of a complaint by BIE does not constitute a ‘decision’ within the meaning of Section 335(d), and that there must be a formal resolution to the complaint by the Commission before the disclosure requirement in Section 335(d) is triggered.

Township of Marple v. Pa. Pub. Util. Comm’n

No. 319 C.D. 2022,  (Pa. Cmwlth. 2023) Opinion Not Reported Decided March 9, 2023

On March 9, 2023, in a non-reported decision, the Commonwealth Court vacated and remanded the Commission’s March 10, 2022 Opinion and Order with instructions that it issue an Amended Decision regarding Intervenor PECO Energy Company’s “Petition for a finding pursuant to 53 P.S. Section 10619” that must incorporate the results of a constitutionally sound environmental impact review as to siting a “fiber building” and “gas reliability station building” upon real property located in the Township of Marple, Delaware County, PA.  The Court held that the Commission erred in declining to consider the station’s potential negative environmental impact upon health, safety and welfare of the public as well as Marple Township’s development goals.  Specifically, the Court held that under article I, section 27 of the Pennsylvania Constitution, Environmental Rights Amendment, the Commission is obligated to consider the environmental impacts of placing a building at a proposed location while also deferring to environmental determinations made by other agencies with primary jurisdiction over such matters.

Philadelphia Gas Works v. Pennsylvania Public Utility Commission

Docket No. 1291 C.D. 2018, Decided March 16, 2022, Opinion Not Reported.

The Commonwealth Court addressed issues remaining for disposition on remand following reversal of the Commonwealth Court’s decision in Philadelphia Gas Works v. Pennsylvania Public Utility Commission, 222 A.3d 1218, 1224 (Pa. Cmwlth. 2019) (PGW I), by the Pennsylvania Supreme Court. See Phila. Gas Works v. Pa. Pub. Utility Comm’n, 249 A.3d 963, 974 (Pa. 2021) (PGW II), reargument granted in part 256 A.3d 1092 (June 15, 2021), on reargument, 256 A.3d 1092 (Pa. 2021). 

Regarding an issue of “retroactivity”, the Commonwealth Court determined that an earlier Supreme Court decision (PGW II) applied to both the litigants that participated in that case and to all cases pending on direct appeal at the time of issuance of that decision.  The Court further remanded to the Commission for the purpose of allowing the parties to present additional evidence concerning the correct calculation of any refunds PGW owes Intervenors Colonial Garden and Simon Garden. The Court concluded that principles of due process and fairness precluded the Commission from simultaneously announcing a new interpretation of Section 3 of the Lien Law, 53 P.S. Section 7106, and imposing a monetary sanction against PGW for its adherence to longstanding and commonly applied interpretation.  The Court Reversed a civil penalty of $25,000 related to PGW’s charges of tariff rates on delinquent accounts subject to filed liens prior to the Supreme Court’s decision in PGW II on April 29, 2021.

Second Quarter

Pa. Pub. Util. Cmm’n v. Eric Friedman and Energy Transfer v. Eric Friedman (Friedman II)

Docket No. 1560 C.D 2019 and 1576 C.D. 2019, Decided April 25, 2023.

The PUC appealed the OOR’s Final Determination (OOR) ordering the PUC to turn over records requested by Eric Friedman pursuant to the PA Right-to-Know Law: transmittal letters containing confidential security information (CSI) and the non-CSI records submitted under cover of those transmittal letters by Sunoco Pipeline/Energy Transfer (ET).  On April 25, 2023, the Commonwealth Court issued its opinion reversing the OOR in part and affirming it in part.  With respect to records designated as CSI by ET—and records not so designated but that do in fact contain CSI—the Court reversed the OOR, finding that the PUC does not have to provide such records to the requester.  This includes transmittal letters that are themselves designated CSI.  Such records, the Court held, are exempt from disclosure under the CSI Disclosure Protection Act and, pursuant to the PA Supreme Court’s opinion in PUC v. Friedman, 24 MAP 2021 (Friedman I), the OOR has no authority with respect to CSI records.  CSI records are solely within the jurisdiction of the administrative agency in possession of the records.

With respect to records not designated as CSI by ET, the Court affirmed the OOR, which found that these records are subject to analysis under the RTKL and required the PUC to disclose these records to Friedman.  The Court found that neither the PUC’s nor ET’s affidavits were sufficient to support the claimed exemptions under the RTKL—public safety and public utility infrastructure security (Sec. 708(b)(2) and (3)); trade secrets (Sec. 708(b)(11)-claimed by ET only); and non-criminal investigation (708(b)(17).  These affidavits had been submitted to the OOR by the PUC and ET in support of their Position Statements as part of Friedman’s appeal of the PUC’s denial of his RTK request.  The Court noted that non-CSI records are not entitled to the protections of the CSI Act and, as the Court found the affidavits insufficient to establish the claimed RTKL exemptions, the Court affirmed the OOR’s order requiring the PUC to disclose the records.

Sunoco Pipeline, L.P. v. Pennsylvania Public Utility Commission

Docket Nos. 1415-1419 C.D. 2021, and 1421 C.D. 2021, Decided May 5, 2023, Opinion and Order.

The Commonwealth Court affirmed in part and reversed in part the Commission’s Order dated November 18, 2021.  Specifically, the Court affirmed part of the Commission’s decision concluding that Sunoco Pipeline, L.P.’s (Sunoco) public awareness program as implemented failed to meet the reasonable service standard pursuant to 66 Pa. C.S. Section 1501 and there was no error in directing remedial actions to ensure the delivery of safe and reasonable service.   The Court held that the injunctive relief granted was narrowly tailored to address the ways in which the pipeline operator’s public awareness program, as implemented, had not satisfied Section 1501 of the Public Utility Code and Section 59.33 of the Commission’s regulations. 

However, the Commonwealth Court reversed the Commission’s holding regarding violations of federal regulations pertaining to depth of cover and distance requirements for hazardous liquids pipelines.  The Court held that Sunoco was denied due process because the pipeline depth of cover and distance from other underground utilities and structures regulations found at 49 C.F.R. Sections 195.210, 195.248 and 195.250 were not cited to specifically in the formal complaints.  Although one of the consolidated complaints originally did cite to a depth of cover regulation, that complaint was later amended and failed to include that allegation again.  As none of the other complainants in the consolidated proceeding raised these federal regulations in their briefs, the Commission erred in finding violations of these federal regulations regarding the depth of cover and distance of the Mariner East 1 and the workaround pipelines.

Evangeline Hoffman-Lorah v. Pennsylvania Public Utility Commission

Docket No. 712 C.D. 2019, Decided June 23, 2023, Opinion Not Reported.

The Commonwealth Court affirmed the PUC’s decision to dismiss a pro se Complainant’s “smart meter” consolidated complaints regarding her two service properties for failure to prove by a preponderance of evidence that the installation of a smart meter at either property constituted unsafe or unreasonable service under Section 1501 of the Public Utility Code.  The Court held that Ms. Hoffman-Lorah was not entitled to 1) an “opt out” of a smart meter on either her primary residence that she owned with her husband or a second residential building that she owned with her daughter and periodically visited; or 2) an accommodation.

Atuahene v. Pennsylvania Public Utility Commission

Docket No. 1077 C.D. 2021, Decided June 27, 2023, Unreported Opinion

Agnes and Steve Atuahene (Atuahenes) filed a complaint challenging a threatened termination of their electric service by disputing the accuracy of PECO's electric meter readings and the legality of PECO's transfer of electric service account balances from several rental properties owned by the Atuahenes to the account at their current residential address. The Atuahenes asserted that PECO's actions violated their due process rights.  The Commission issued an Opinion and Order denying the Atuahenes’ complaint regarding both the transferred accounts and PECO's threatened termination.  The Atuahenes appealed to the Commonwealth Court.  On June 27, 2023, in an unreported Opinion, the Commonwealth Court affirmed the Commission. The Court found that, as set forth in Section 56.16(b), when a customer discontinues service pursuant to Section 56.16(a), the utility can simply transfer the relevant account to another existing account of the same customer.  The Court also found that there is no requirement in the regulation for the utility to provide separate notice before transferring the discontinued account balance to an existing account.  Finally, the Court found that, pursuant to Section 56.16(c)(2), PECO's mere transfer of the unpaid balances of Agnes Atuahene’s other electric accounts to the account in her name at the Atuahenes’ residence as authorized by PUC regulation did not, as a matter of law, prevent them from asserting any challenge to the correctness of those balances.

Third Quarter

Janice Denito Branagh v. Pennsylvania Public Utility Commission

Docket No. 1857 C.D. 2019, Decided July 6, 2023, Opinion Not Reported.

The Commonwealth Court affirmed the November 14, 2019, order of the PUC holding that Act 129 imposes a mandatory smart meter installation requirement and does not provide for an “opt-out” exception for consumers.  Rather, consumers wishing to receive reasonable accommodations for alleged health and safety reasons have the burden of proving the electric distribution company violated Section 1501 of the Public Utility Code before they are entitled to an accommodation such as relocation of the meter on the service property or an exemption from installation of a smart meter.  Ms. Branagh failed to show Act 129 was unconstitutional and as she rejected PECO’s offer to relocate a meter on the service property, her rejection of an accommodation offering, her challenges to Act 129 were held to be without merit.  Further, the Court held that the PUC applied the correct burden of proof standard under Section 1501 that a consumer must prove by a preponderance of evidence that the challenged services or facilities more likely than not caused a complained-of adverse health effect.  Specifically, the Court stated, “In other words, the consumer must establish a conclusive, and not a speculative causal connection.”  As Ms. Branagh failed to offer expert medical testimony to support her claims of deleterious health conditions caused by a proposed installation of a smart meter, her Complaint was properly dismissed by the PUC. 

Nelson Hess v. Pennsylvania Public Utility Commission

Docket No. 1155 C.D. 2020), Decided July 14, 2023, Opinion Not Reported.

The Commonwealth Court held that the issues on appeal generally related to whether installation of a smart meter was harmful to Mr. Hess’s health and whether substantial evidence exists to support the Commission’s holding that Mr. Hess failed to prove by a preponderance of the evidence a conclusive causal connection between radio frequency emissions from the smart meter in question and adverse health effects to him from having the meter installed.

Because Mr. Hess merely testified and presented two articles as exhibits, this was inadequate to carry his burden of proof, which required the presentation of specific expert testimony.  Accordingly, the Court affirmed the Commission’s Orders entered on December 19, 2019, and October 8, 2020, respectively. PPL was the electric distribution company involved in the case.

Mary Paul v. Pennsylvania Public Utility Commission

Docket No. 460 C.D. 2019), Decided July 25, 2023, Opinion and Order

The Commonwealth Court issued an Opinion and Order affirming the Orders of the Pennsylvania Public Utility Commission, dated June 14, 2018, and March 14, 2019.  Ms. Paul was a pro se appellant whose issues on appeal were resolved by the Pa. Supreme Court’s decision in Povacz v.  Pennsylvania Public Utility Commission, 280 A.3d 975 (Pa. 2022).  This was a “smart meter” case and the electric distribution company was PECO.

Ruben M. Collazo v. Pennsylvania Public Utility Commission

Docket No. 145 C.D. 2023, Decided July 25, 2023, Memorandum Opinion Not Reported.

On the grounds of res judicata, the Commonwealth Court issued a Memorandum Opinion affirming the December 22, 2022, Opinion and Order of the Commission.

Patrick M. Cicero v. Pennsylvania Public Utility Commission 

Docket No. 910 CD 2022, Decided July 31, 2023, Opinion and Order.

The Commonwealth Court reversed the July 29, 2022, Opinion and Order of the Commission that had approved an application of Aqua Pennsylvania Wastewater, Inc. to acquire wastewater system assets of East Whiteland Township; to offer wastewater services in the township; and to establish a ratemaking rate base of the system’s assets under Section 1329 of the Public Utility Code.   The Court agreed with Consumer Advocate Patrick Cicero that the Commission erred in finding this acquisition met the standards set forth in Sections 1102 and 1103 of title 66, Pa. C.S.

Borough of Middletown v. Pennsylvania Public Utility Commission (No. 1450 CD 2021) and Metropolitan Edison Company v. Pennsylvania Public Utility Commission (No. 36 CD 2022)

Decided August 7, 2023, Opinion and Order.

Librandi Machine Shop, Inc. (Librandi) filed a Petition for Declaratory Order on 2/21/18, seeking a declaration that it has the right to obtain electrical utility services at its facility in Middletown, Pa. from MetEd and that the Borough of Middletown cannot prevent MetEd from serving it by refusing to disconnect its electrical utility services.  An Initial Decision was issued on 2/13/20, granting and denying in part the Petition. The Administrative Law Judge concluded that Librandi produced substantial evidence which demonstrated that it is entitled to a Commission declaration that the act of switching electric suppliers from Middletown to MetEd: (1) would not cause unnecessary duplication of facilities; and (2) would not result in impermissible competition between two electric suppliers.  The ID denied Librandi’s request for a declaration that Librandi’s facilities are located within MetEd’s service territory based on the ALJ’s conclusion that the issue of Librandi’s geographic location lies within the exclusive jurisdiction of the Courts of Common Pleas.  Exceptions and Replies to Exceptions were filed by the Parties.

The Commission entered an Opinion and Order adopting the recommendations of the ALJ that the record shows that permitting Librandi to obtain electric utility distribution service from MetEd will not cause unnecessary duplication of facilities or result in impermissible competition.  However, the ID was modified to conclude that: (1) Librandi is entitled to a declaration that it has the right to obtain electric utility service from MetEd; and (2) MetEd is certificated to provide such service pursuant to the Public Utility Code (Code), 66 Pa. C.S. §§ 101 et seq.; and MetEd’s approved tariffs defining its certificated territory.  The Commission held that the authority of MetEd, as a certificated utility, to provide service to Librandi is a matter that is within the jurisdiction of the Commission and is not dependent upon a determination of the geographic location of Librandi’s facilities under the facts of this dispute. 

On 12/29/21 and 1/18/22, the Borough of Middletown and Metropolitan Edison Company, respectively, filed petitions for review with the Commonwealth Court challenging the Commission’s 2/25/21 Order and 12/16/21 Order on reconsideration regarding the Petition for Declaratory Order filed by Librandi on 2/21/18. Both the Borough and Met-Ed challenged the Commission’s findings that Met-Ed is required to provide electric service to Librandi at its location on property owned by the Susquehanna Area Regional Airport Authority. The appeals were consolidated and on 8/7/23, the Court reversed the Commission’s Order.  The Court held that the Commission erred when it concluded that Librandi had the right to obtain electric service from Met-Ed based on Met-Ed having the authority to provide such services under its current or pre-existing certificate of public convenience (CPC), or by virtue of Met-Ed’s acquisition of grandfathered or legacy rights when it acquired the facilities of the former Olmstead Air Force Base in Middletown, PA.  The Commission erred in allowing Met-Ed to expand its certificated authority beyond that expressly set forth in the 1923 CPC by entering into a private contract with a non-public utility to purchase its facilities.

Pa. Pub. Util. Comm’n and Energy Transfer v. Scott Blanchard and StateImpact Pennsylvania, Nos. 19 and 26 C.D. 2020, 2023 Pa. Commw. Unpub. LEXIS 460 (Pa. Cmwlth. 2023),

Decided August 22, 2023

On August 22, 2023, in an unreported decision, the Commonwealth Court reversed the Office of Open Record’s (OOR) Final Determination dated December 12, 2019, regarding Commission records requested under the Right-to-Know Law, 65 P.S. §§ 67.101, et seq.  In its Final Determination, the OOR found that the Public Utility Confidential Security Information Disclosure Protection Act (CSI Act), 35 P.S. §§ 2141.1–2141.6, did not preclude disclosure of the records.  However, the OOR then found that the records were not disclosable under the noncriminal investigation exemption of the RTKL.  Notwithstanding this finding, the OOR held that the records must be disclosed under Section 335(d) of the Public Utility Code, 66 Pa.C.S. § 335(d), to the extent that the records formed the basis of the Bureau of Investigation and Enforcement’s (BIE) decision to file a complaint.  The Commonwealth Court reversed the Final Determination, citing the Pennsylvania Supreme Court’s decision in Pa. Pub. Util. Comm’n and Energy Transfer v. Friedman, 265 A.3d 421 (Pa. 2021).  The Commonwealth Court noted that the OOR bypassed the fact that the records designated as CSI.  The Commonwealth Court held that the OOR had no authority to determine that the Commission was required to disclose the requested records under Section 335(d) once the CSI designation was established in the record.

Alan Schmukler v. PaPUC (1102 CD 2019)

Decided September 6, 2023

On September 6, 2023, the Commonwealth Court issued an Opinion and Order holding Mr. Schmukler failed to prove by a preponderance of evidence that an AMI meter installation on his property violated Section 1501 of the Public Utility Code.  Specifically, he failed to prove the smart meters used by PPL present a fire safety hazard or that they emit radio frequency levels causing or contributing to the development of an illness or disease of which Mr. Shmukler complained.  Further, there is no opt-out provision in Act 129.  Therefore, the court affirmed the Commission’s Final Order entered on July 23, 2019.

Pa. Pub. Util. Comm’n v. Jonathan Nase and Cozen O’Connor

No. 514 CD 2022, Opinion and Order Decided September 8, 2023

The Commonwealth Court affirmed the Office of Open Records’ (OOR) determination that the Commission must disclose a relatively small number of records or portions thereof—generally e-mails, some containing attachments. The Court, like the OOR, found that these records were not exempt from disclosure under the Right-To-Know-Law (RTKL) exemption for notes and working papers; the RTKL exemption for pre-decisional deliberations; or the attorney-client privilege. 

Verizon, et al. v. Pa. Pub. Util. Comm’n 

Docket Nos. 521 & 530 C.D. 2021, Opinion and Order Decided September 21, 2023

On September 21, 2023, the Commonwealth Court affirmed the Commission’s April 15, 2021, Order that had denied Verizon Pennsylvania, LLC and Verizon North LLC (collectively, Verizon) and Metropolitan Edison Company (Met-Ed), Pennsylvania Electric Company (Penelec), and Pennsylvania Power Company (Penn Power) (collectively, FirstEnergy) the consolidated appeals of the Commission’s April 15, 2021, Order. This was the first appeal challenging the application of the Commission’s Pole Attachment regulations, Ch. 77, which became effective in March 2020 when the Commission asserted jurisdiction over the rates, terms, and conditions of pole attachments from the FCC. Specifically, FirstEnergy sought reversal of the PUC’s determination in its entirety, asserting violations of Pennsylvania and federal law, and constitutional rights. Verizon, though substantially aligned with the Commission, challenged the Commission’s determination on the basis that it erred or abused its discretion by curtailing the retroactive date for the issuance of refunds for unlawful overcollections to November 20, 2019, instead of allowing refunds retroactive to July 12, 2011, or, at the very least, November 2015, which would be allowed under 66 Pa.C.S. Section 1312(a). 

The Commonwealth Court held the following.

• FirstEnergy’s argument that the Commission was required to consider fully allocated costs in the New Telecom Rate ignored the regulatory language.
• The Commission did not, and could not, violate the law by choosing to deviate from FCC precedent, because FCC precedent is not considered binding or controlling on the Commission’s adjudicatory process to address and resolve pole attachment matters.
• The Commission did not err in finding that Verizon was entitled to receive the New Telecom Rate.
• Commission did not err by issuing a refund for the period at issue.
• The Code does not direct that the “exact amount to be paid” must be stated in numerical terms, as opposed to formulaic terms, and that formulaic refunds are just as precise.
• The Commission is not required to create a regulatory asset in the context of this proceeding, and that the reductions to the pole attachment rates are the direct result of FirstEnergy maintaining inflated rates for a decade following regulatory change.
• The Commission has discretion to establish a refund period that is less than the full length applied by the applicable statute of limitations. Section 1312(a) of the Code empowers the Commission to issue refunds within four years prior to the date of the filing of the complaint, but because the Commission is not required to award refunds, the decision to award a refund for any period within the statute of limitations is a matter of Commission discretion. The Commission could have chosen a different refund period under the law, but Verizon did not demonstrate that the Commission erred or abused its discretion in choosing the selected refund period.

Fourth Quarter

Richard Myers v. Pennsylvania Public Utility Commission

No. 1337 CD 2019, Opinion Decided November 3, 2023

Mr. Myers sought to prevent PPL from installing a “smart meter” on his residence as well as 11 residential rental properties he owned.  He argued that he would receive unreasonable and unsafe service and that Act 129 of 2008 (66 Pa.C.S. § 2807(f)) provided him with an opt-out provision.  Mr. Myers sought a Commission-ordered directive that he be allowed to keep the current “analog” meters and not have his or his tenants’ electric services terminated.  This formal complaint was denied and dismissed by the Commission after hearings.  Mr. Myers appealed the Commission’s decision.  The Commonwealth Court held that in light of the Supreme Court’s holding in Povacz, which is dispositive of Mr. Myer’s issues on appeal, the Commission’s August 19, 2019, Order was affirmed.

Transource Pennsylvania, LLC v. Stephen M. DeFrank, et al.

Civil No. 1:21-CV-01101, Unreported Memorandum and Order Decided December 6, 2023,

Transource Pennsylvania, LLC (Transource PA) sought declaratory relief in the U.S. District Court for the Middle District of Pennsylvania on the grounds that the PUC's decision denying high voltage transmission line siting applications, consolidated eminent domain applications, and petitions for zoning waivers regarding shelters at substations is preempted under federal law and violates the dormant Commerce Clause.  Transource PA also sought injunctive relief preventing enforcement of the PUC's decision, including its revocation of Transource's Certificate of Public Convenience.

Upon a motion for summary judgment filed by Transource PA, the U.S. District Court for the Middle District of Pennsylvania granted the motion in Transource PA’s favor holding that the PUC's decision to deny two high voltage transmission line siting applications, multiple eminent domain applications, and petitions for waivers from zoning ordinances as well as to rescind a certificate of public convenience was in violation of the Supremacy Clause and the dormant Commerce Clause of the U.S. Constitution as it resulted in primarily “protectionism” of Pennsylvania’s interests over interstate commerce.

According to the Court, the Commission’s order was a per se violation of the dormant Commerce Clause, driven by the discriminatory purpose of economic protectionism. The court found that although various statements by the Commission place greater emphasis on Pennsylvania interests and others place more emphasis on regional interests, the Commission’s own words make clear that it was focused on protecting the interests of Pennsylvanians, and the Commission’s opposition to the Project was rooted in economic protectionism in the form of maintaining the status quo imbalance of access to low-priced electricity. The Court found that the Commission’s findings that congestion may not exist, and the Project may not alleviate it were belied by the Commission’s other findings that Pennsylvanians (and others), who will not be paying the costs of building the Project, will pay higher rates if the Project is completed. According to the Court, these latter findings were premised on the assumptions that congestion exists and that the Project would reduce congestion and increase prices for Pennsylvanians.

The Court also found the Commission’s order discriminated in fact, based upon the practical effect of the Commission decision. By insisting on counting as a Project cost the projected increase in pricing to those who currently benefit from congestion, the Commission’s decision recognizes congestion as a benefit. Thus, the Court found that Transource met its burden in proving the existence of discrimination, both in purpose and in fact. The court found that the Commission failed to show that its order was narrowly tailored to advance a legitimate purpose, because it failed to assert a legitimate local purpose. The Court also held that if other states adopted a regime like the Commission, each state could put forth its own analysis and effectively veto whether regional transmission projects were desirable as congestion-reducing projects.