Romeo v. Pennsylvania Public Utility Commission
154 A.3d 422
| Pa. Commw. Ct. | 2017Background
- Romeo, a PECO customer, refused installation of a smart meter and received a termination notice after PECO sought access to replace his meter under its smart meter deployment plan required by Act 129.
- Romeo filed a complaint with the Pennsylvania PUC alleging PECO’s attempts to force installation violated federal law (Energy Policy Act/PURPA), and alleging smart meters cause fires, health, safety, and privacy harms; he sought an order preventing PECO from terminating service or installing the meter.
- PECO moved to dismiss (preliminary objections) arguing it was required by Act 129 and its Commission-approved Smart Meter Plan to install advanced meters, its tariff permits property access for equipment changes, and no opt-out exists; PECO asserted Romeo’s complaint was legally insufficient.
- The ALJ sustained PECO’s preliminary objections and dismissed Romeo’s complaint, concluding customers cannot opt out of Commission-required smart meter deployment; the ALJ did not address Romeo’s federal preemption claim or safety allegations.
- The Commission adopted the ALJ’s decision, but addressed and rejected Romeo’s preemption claim — finding PURPA/Energy Policy Act does not preempt state law and explicitly permits differing state standards — and held Romeo’s safety allegations were legally insufficient for lack of personal testimony.
- The Commonwealth Court affirmed the Commission’s preemption ruling, reversed the dismissal of the safety/health claim (holding the complaint was not legally insufficient at the preliminary-objection stage), and remanded for further proceedings on Romeo’s health and safety allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal law (Energy Policy Act / PURPA) preempts Act 129’s mandatory smart meter installation | Romeo: Federal law requires only that utilities offer time-based rates and provide meters upon request; Congress did not mandate compulsory installation, so Act 129 is preempted | PECO/Commission: PURPA and the Energy Policy Act supplement but do not preempt state law; PURPA expressly allows states to adopt different standards | Not preempted — affirmed: PURPA/Energy Policy Act do not preempt Act 129 or the Commission-approved smart meter program |
| Whether the Commission erred in dismissing Romeo’s complaint on legal-insufficiency grounds as to alleged health/safety/fire risks from smart meters | Romeo: Complaint alleges concrete dangers and requests hearing; factual allegations must be allowed to proceed | PECO/Commission: Romeo cannot personally testify that a smart meter caused harm; complaint is legally insufficient | Reversed: Complaint was not legally insufficient at preliminary-objection stage; remand for further proceedings (hearing/discovery) |
| Whether Romeo waived other issues by failing to raise them in exceptions to the ALJ | Romeo: Raised preemption in exceptions and preserved related issues | Commission: Issues not raised in exceptions are waived | Court: Commission may review issues beyond exceptions; because Commission addressed safety, Romeo may appeal those rulings — waiver not applied here |
| Whether the Commission exceeded authority in ordering PECO to install smart meters | Romeo: Commission should prohibit forced installations under federal law | PECO: Act 129 and Commission orders require deployment; Commission lacks authority to allow opt-outs absent legislative directive | Court: Commission properly concluded it cannot require an opt-out; deployment consistent with Act 129 and Commission orders (affirmed as to scope of Commission authority) |
Key Cases Cited
- Office of Disciplinary Counsel v. Marcone, 855 A.2d 654 (Pa. 2004) (framework for types of federal preemption)
- Krentz v. Consol. Rail Corp., 910 A.2d 20 (Pa. 2006) (preemption analysis focuses on congressional intent)
- United Transp. Union v. Pa. Pub. Util. Comm’n, 68 A.3d 1026 (Pa. Cmwlth.) (review scope for Commission decisions)
- Energy Pipeline Co. v. Pa. Pub. Util. Comm’n, 662 A.2d 641 (Pa. 1995) (Section 335(a) gives Commission plenary review once exceptions filed)
- Springfield Twp. v. Pa. Pub. Util. Comm’n, 676 A.2d 304 (Pa. Cmwlth.) (issues not raised in exceptions are typically waived)
- Capital City Cab Serv. v. Pa. Pub. Util. Comm’n, 138 A.3d 119 (Pa. Cmwlth.) (preservation rule: issues not raised to Commission are not preserved on appeal)
- Pa. Power Co. v. Pa. Pub. Util. Comm’n, 561 A.2d 43 (Pa. Cmwlth.) (procedural waiver principles affirmed)