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1-A Realty v. Pennsylvania Public Utility Commission

January 4, 2013

1-A REALTY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



The opinion of the court was delivered by: Anne E. Covey, Judge

Submitted: December 7, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY

JUDGE COVEY

Petitioner 1-A Realty (Owner) appeals from the Pennsylvania Public Utility Commission's (PUC) April 12, 2012 order adopting the Administrative Law Judge's (ALJ) initial decision dismissing Owner's complaint and ordering PPL Electric Utilities Corporation (PPL) to transfer tenant electric accounts to Owner's name. The issues for this Court's review are: (1) whether Section 1529.1 of the Public Utility Code (Code), 66 Pa.C.S. § 1529.1,*fn1 permits tenants to accept utility service for communal street lights which are not part of their normal home usage; (2) whether the PUC properly concluded that PPL could not convert the transferred Owner's account back to the tenants' names; and, (3) whether the PUC properly ordered PPL to transfer the accounts of tenants not involved in this dispute to Owner's name. We affirm.

The facts of this case are not in dispute. Petitioner owns and operates Red Maple Acres (Red Maple), a community in Lower Macungie Township, Wescosville, wherein residents lease their lots and place their manufactured homes on site, commonly referred to as a mobile home park. When Red Maple was developed in the 1960s, wiring for its 21 street lights was placed underground in unmarked locations on a single circuit connected to Red Maple's central maintenance garage, and not in conduit. After an incident in which a tenant inadvertently dug up and cut street light wiring, a recurring problem, Owner determined there was a safety issue. Therefore, Owner decided to wire the communal street lights to the electric boxes of the homes of the nearest tenants.

Owner notified tenants of the proposed rewiring, including Phyllis and Herbert Ruth (Ruth) and Karen Thompson (Thompson). Owner rewired the street lights in July 2009. Each home connected to a street light was provided a switch in its breaker box associated with the light. Tenants were aware that the conversion was taking place. Based upon metered usage measured at the maintenance building and two vacant lots, Owner determined that the average electric bill for street light usage ranged from $6.54 to $9.67 per month. Accordingly, Owner gave tenants to whose property the street lights were wired a $10.00 monthly rental discount to compensate them for the additional electric expense.*fn2

In August 2009, tenants Ruth and Thompson called PPL to determine whether the $10.00 was sufficient to compensate them for the street light usage. Neither of them wanted an investigation to proceed, nor did they ask that their electric usage account be placed in Owner's name. Nevertheless, by letters dated August 21 and August 26, 2009, respectively, PPL notified Owner that the Ruth and Thompson accounts, along with the outstanding balances, had been transferred to Owner's name due to the fact that their homes were "not individually metered." In other words, their electric meters were registering usage which was not exclusive to their homes, commonly referred to as accepting a "foreign load." Owner responded that the claimed loads had been disconnected from the Ruth and Thompson breaker boxes, and instructed PPL to transfer the accounts back to Ruth and Thompson. Although PPL confirmed that there was no foreign load going to the Ruth or Thompson meters, PPL refused to change the accounts back. PPL also refused Ruth's and Thompson's requests to have the electric accounts placed back in their names.

On March 24, 2010, Owner filed complaints with the PUC against PPL pertaining to the Ruth account (No. F-2010-2166554) and the Thompson account (No. F-2010-2166976) based upon PPL's above-described conduct. The ALJ consolidated the complaints. PPL filed an answer and new matter, and Owner filed a reply to PPL's new matter. Hearings were held before the ALJ on April 26, 2011 and August 23, 2011. On December 20, 2011, the ALJ issued an initial decision dismissing the complaints and directing PPL to transfer the accounts for each of the 21 Red Maples' residents*fn3 with street lights attached to their residential electric boxes into Owner's name until such time as Owner permanently, completely, and safely corrects the foreign load in conformity with his decision. Owner filed exceptions to the ALJ's initial decision, and PPL filed a reply to the exceptions. By April 12, 2012 opinion and order, the PUC denied Owner's exceptions, adopted the ALJ's initial decision and dismissed Owner's complaints. Owner appealed to this Court.*fn4 On October 15, 2012, PPL was granted leave to intervene.

Owner first argues that the PUC erred by finding that tenants are not permitted to accept utility service for communal street lights which are not part of their normal home usage. Specifically, Owner contends that Section 1529.1(b) of the Code, 66 Pa.C.S. § 1529.1(b), permits a utility customer to accept a foreign load, and that prior PUC policy pronouncements support its position. We disagree.

This Court has held that the PUC's interpretations of the Code, the statute for which it has enforcement responsibility, and its own regulations are entitled to great deference and should not be reversed unless clearly erroneous. When reviewing a PUC decision, the Court should neither 'substitute its judgment for that of the PUC when substantial evidence supports the PUC's decision on a matter within the commission's expertise,' nor should it indulge in the process of weighing evidence and resolving conflicting testimony.

Energy Conservation Council of Pa. v. Pa. Pub. Util. Comm'n, 995 A.2d 465, 478 (Pa. Cmwlth. 2010) (citation omitted).

At issue here is Section 1529.1(b) of the Code, which provides:

[I]f the mobile home park . . . contains one or more dwelling units not individually metered, an affected public utility shall forthwith list the account for the premises in question in the name of the owner, and the owner shall thereafter be responsible for the payment for the utility services rendered thereunto. In the case of individually metered dwelling units, unless notified to the contrary by the tenant or an authorized representative, an affected public utility shall list the account for the premises in question in the name of the owner, and the owner shall be responsible for the payment for utility services to the premises. 66 Pa.C.S. ยง 1529.1(b) (emphasis added). However, the phrase "not individually metered" is not defined in the Code or the PUC's regulations. Notwithstanding, the PUC has defined the phrase in its decisions. In Shank v. PPL Electric Utilities, Inc., Docket No. C-2009-2087300 (Pa. PUC 2009), the PUC held that the phrase, "not individually metered" as used in Section 1529.1 of the Code means that the unit's electric meter is ...


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