City of Lancaster v. Pa. Pub. Util. Comm'n

• Decision Date: 11 October 2022
• Docket Number: 251 M.D. 2019,No. 251 M.D. 2019
• Citation: 284 A.3d 522
• Parties: CITY OF LANCASTER, Borough of Carlisle, and Borough of Columbia, Petitioners v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent
• Court: Pennsylvania Commonwealth Court

284 A.3d 522

CITY OF LANCASTER, Borough of Carlisle, and Borough of Columbia, Petitioners

v.PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent

No. 251 M.D. 2019

Commonwealth Court of Pennsylvania.

Argued December 9, 2020

Decided October 11, 2022

Michael E. Peters, Doylestown, for Petitioners.

Joseph P. Cardinale, Jr., Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,¹ HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge,² HONORABLE MICHAEL H. WOJCIK, Judge,³ HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE COVEY

Before this Court is the City of Lancaster's, the Borough of Carlisle's, and the Borough of Columbia's (collectively, Municipalities) Application for Summary Relief (Application) regarding Count II of their Petition for Review (Petition) filed in this Court's original jurisdiction. After review, this Court grants the Application.

Background

On April 29, 2019, the Municipalities filed the Petition challenging the validity of Section 59.18 of the Pennsylvania Public Utility Commission's (PUC) Regulations (Section 59.18), 52 Pa. Code § 59.18, which, as amended by a Final Rulemaking Order adopted on May 22, 2014 (Final Rulemaking Order), see Petition, Ex. G, mandates outdoor gas meter locations but permits a natural gas distribution company's (NGDC) consideration of indoor gas meter locations when a gas meter is, inter alia , in a building within a locally designated historic district. See 52 Pa. Code § 59.18(a)(1). In Count I of the Petition, the Municipalities challenged Section 59.18 on the basis that, as amended, it violated article I, section 27 of the Pennsylvania Constitution.⁴ In Count II of the Petition, the Municipalities challenged Section 59.18 as an improper delegation of the PUC's authority to private parties - NGDCs.

On June 26, 2019, the PUC filed preliminary objections to both Counts of the Petition (Preliminary Objections). The Court heard oral argument on December 12, 2019. On February 21, 2020, this Court sustained the PUC's Preliminary Objection to Count I of the Petition, but overruled the PUC's Preliminary Objection to Count II. See City of Lancaster v. Pa. Pub. Util. Comm'n, 2020 WL 864986 (Pa.Cmwlth. No. 251 M.D. 2019, filed Feb. 21, 2020) (February 2020 Opinion).

In its February 2020 Opinion, this Court stated relative to Count II, in relevant part:

[A]s correctly noted by the Municipalities in their brief [in opposition to the Preliminary Objections], [Section] 59.18(d) "contains no procedures whatsoever with respect to the placement of meters on historic properties . To the contrary , the decision of where to place a meter on a historic property is left entirely to the discretion of the utility ." (Municipalities’ Br. [in Opp'n to Prelim. Objs.] at 24.) Although ... it is possible that the owners of the historic buildings may discuss the location of the meter with the NGDC as part of the notice process, [Section] 59.18(d) does not appear to have a formal, adjudicative process. Most notably, contrary to that argued by the PUC, there is no formal application procedure embedded within [Section] 59.18. Further, in light of the plain language of [Section] 59.18(d), an NGDC is not required to set forth the basis or reasons for its determination as to whether a meter should be located inside or outside a structure.

February 2020 Op. at 24-25 (emphasis added).

On March 27, 2020, the PUC filed its answer to the Petition. On September 6, 2020, the Municipalities filed the Application seeking summary relief as to remaining Count II.

Discussion

Initially,

Pennsylvania Rule of Appellate Procedure 1532(b) allows the Court to enter judgment at any time after the filing of a petition for review where the applicant's right to relief is clear. P[a].R.A.P. 1532(b). Summary relief is reserved for disputes that are legal rather than factual, Rivera v. P [a. ] State Police , 255 A.3d 677, 681 (Pa. Cmwlth. 2021), and we resolve "all doubts as to the existence of disputed material fact against the moving party." Id . (quoting Marcellus Shale Coal [. ] v. Dep [’ ]t of Env [’ ]t Prot [. ], 216 A.3d 448, 458 (Pa. Cmwlth. 2019) ). An application for summary relief is appropriate where a party lodges a facial challenge to the constitutionality of a statute .

McLinko v. Dep't of State , 270 A.3d 1243, 1250 (Pa. Cmwlth.), aff'd in part , rev'd in part on other grounds , --- Pa. ––––, 279 A.3d 539 (2022) (footnote omitted; emphasis added). "An application for summary relief may be granted if a party's right to judgment is clear and no material issues of fact are in dispute." Jubelirer v. Rendell , 598 Pa. 16, 953 A.2d 514, 521 (2008) (quoting Calloway v. Pa. Bd. of Prob. & Parole , 857 A.2d 218, 220 n.3 (Pa. Cmwlth. 2004) ).

The Municipalities first contend that since no material facts are in dispute, this Court may grant summary relief in a facial challenge to Section 59.18. Specifically, the Municipalities assert that "this Court need only consider the wording of Section 59.18," Municipalities Br. at 12, to determine "whether the PUC did so in a way that constitutes an improper delegation to NGDCs[, which] is the only question that remains before this Court." Municipalities Reply Br. at 4. Because the Municipalities challenge whether Section 59.18 itself is an improper delegation of authority, which raises a legal rather than factual question, the Municipalities’ Application is appropriate.

The Municipalities next argue that they are entitled to judgment as a matter of law because Section 59.18 improperly delegates authority to NGDCs in contravention of article II, section 1 of the Pennsylvania Constitution, which provides: "The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives." PA. CONST . art. II, § 1. Specifically, the Municipalities contend that Section 59.18 lacks adequate standards and/or procedures to guide NGDCs in determining where to place a meter at a property located in a historic district,⁵ and to prevent arbitrary NGDC decisions mandating meter relocations.

Section 59.18 provides:

(a) General requirements for meter and regulator location .

(1) Unless otherwise allowed or required in this section , meters and regulators must be located outside and aboveground.

(2) Except in the case of an emergency, a utility shall provide written notice to a utility customer by first class mail or by personal delivery at least 30 days prior to relocating and subsequently installing a meter or regulator outside the customer's building....

(3) The written notice must inform the customer and building owner of the equipment that the utility proposes to relocate, the planned new location and how to contact the utility to provide supplemental information that the utility may not have, such as the building's historic status. The written notice must include contact information for the [PUC's] Bureau of Consumer Services.

....

(5) When selecting a meter or service regulator location, a utility shall consider potential damage by outside forces.

(6) The meter location must accommodate access for meter reading, inspection, repairs, testing, changing and operation of the gas shut-off valve.

(7) When feasible and practical to do so, the meter location must accommodate the installation of the service line in a straight line perpendicular to the main.

(8) Meters and service regulators may not be installed in the following locations:

(i) Beneath or in front of windows or other building openings that may directly obstruct emergency fire exits.

(ii) Under interior stairways.

(iii) Under exterior stairways, unless an alternate means of egress exists and the meter and service regulator are installed in a well-vented location under stairs constructed of noncombustible material.

(iv) A crawl space.

(v) Near building air intakes under local or [s]tate building codes.

(vi) In contact with soil or other potentially corrosive materials.

(9) Unless caused by a customer's or building owner's violation of applicable gas safety or tariff rules, a utility shall pay the costs of relocating a meter or regulator when the relocation is performed to meet utility or [PUC] safety requirements.

(10) Unless caused by a customer's or building owner's violation of applicable gas safety or tariff rules, a utility shall pay the cost of extending customer-owned facilities to the new meter or regulator location when the relocation is performed to meet utility or [PUC] safety requirements.

(11) A customer or building owner requesting that a meter or regulator be moved shall pay the costs associated with relocation when the meter and regulator are currently situated in a suitable location under [s]tate and [f]ederal regulations.

(12) Utilities shall address meter, regulator and service line location regulations in their tariffs.

....

(d) Inside meter locations .

(1) Inside meter locations shall be considered only when :

(i) The service line pressure is less than 10 [pounds per square inch gauge (]psig[)].

(ii) A meter is located in a building that meets one of the following criteria :

(A) A building is listed in the National Register of Historic Places or the customer or building owner notifies the utility that the building is eligible to be listed in the National Register of Historic Places and the eligibility can be readily confirmed by the utility.

(B) A building is located within a historic district that is listed in the National Register of Historic Places or the customer or building owner notifies the utility that the historic district is eligible to be listed in the National Register of Historic Places and the eligibility can be readily confirmed by the utility.

(C) A building has been designated as historic under the [A]ct of June 13, 1961 (P.L. 282, No. 167[, as amended ,]) ( 53 P.S. §§ 8001 -[ ]8006), known as the Pennsylvania Historic

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