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

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.

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.