Polites v. Pa. Public Utility Com'n

• Decision Date: 11 June 2007
• Docket Number: No. 83 C.D. 2007.,83 C.D. 2007.
• Parties: Constantine N. POLITES, Petitioner v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

928 A.2d 388

Constantine N. POLITES, Petitioner v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.

No. 83 C.D. 2007.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 11, 2007.

Decided June 11, 2007.

Constantine N. Polites, petitioner, pro se.

Patricia T. Wiedt, Asst. Counsel and Frank B. Wilmarth, Deputy Chief Counsel, Harrisburg, for respondent.

Thomas T. Niesen, Harrisburg, for intervenor, Aqua Pennsylvania, Inc.

BEFORE: SMITH-RIBNER, Judge, and PELLEGRINI, Judge, and LEAVITT, Judge.

OPINION BY Judge PELLEGRINI.

Constantine N. Polites (Complainant) appeals pro se from an order of the Pennsylvania Public Utility Commission (Commission) dismissing his complaint against Aqua Pennsylvania, Inc. (Provider) because it lacked jurisdiction to adjudicate his complaint regarding the testing of backflow devices.

Complainant operated a commercial warehouse and because of his commercial use of water, was required to install and maintain on his main service line a backflow prevention device approved by Provider. This device was used to isolate contaminants or pollutants within Complainant's water system which could potentially backflow through his service connection and into the public water supply system. To ensure the proper functioning of the backflow devices, Provider's tariff (Tariff) required an annual inspection of the devices by a certified tester at the customer's expense.¹ Although any person could become a tester, to be certified, an individual must have completed a 40-hour training course and passed a written examination and field test.²

Disputing the Tariff's testing method, Complainant filed a complaint against Provider and requested that Provider amend the Tariff to exempt commercial consumers, whose operations are similar to residential users, from the annual testing scheme because residential consumers were not required to undergo backflow device testing. In place of the certified testing, Complainant proposed that small commercial consumers assume personal liability for the maintenance and annual testing of the devices. He suggested that testing could be performed by visually inspecting the function of the backflow valve by reversing the flow of water, thereby eliminating the need for a certified tester. Provider timely filed an answer and new matter wherein it denied the allegations in the complaint and noted that its backflow device testing was required to be completed by a certified tester in accordance with the requirements of the Department of Environmental Protection (Department). After a hearing before an Administrative Law Judge (ALJ) where Complainant testified regarding his disagreement over the Tariff's required testing method, his complaint was dismissed because the Commission lacked jurisdiction.

The ALJ reasoned that although the Commission has jurisdiction over the backflow device itself, 66 Pa.C.S. §§ 1501 and 1505; see also Lansdale Borough v. Philadelphia Electric Co., 403 Pa. 647, 170 A.2d 565 (1961), what was involved here was not the backflow device, but testing for water purity which was statutorily regulated by the Pennsylvania Safe Drinking Water Act³ (Act) and the Federal Safe Drinking Water Act.⁴ He stated that enforcement of these statutes was vested in the Department and the Environmental Protection Agency. The ALJ further noted that when water purity or quality was compromised, the Commission was only able to certify to the Department a question of fact about the purity of water supplied by a public utility. 66 Pa.C.S. § 318(b).⁵ Because the Commission lacked jurisdiction, the ALJ dismissed Complainant's complaint, and Complainant filed exceptions with the Commission. The Commission denied Complainant's exceptions and adopted the ALJ's decision that the backflow testing required by the Tariff was based upon water quality requirements of the Department, and the Commission was without jurisdiction to adjudicate issues of water quality. This appeal by Complainant followed.⁶

Without addressing the issue of whether the Commission lacked jurisdiction, Complainant again argues that small commercial consumers should be exempt from backflow device testing, and a visual inspection of the device performed by a non-certified individual with minimum mechanical skills is sufficient to ensure its functionality. However, unless we determine that the Commission erroneously concluded that it lacked jurisdiction, we may not address Complainant's substantive argument. In re May 15, 2001 Municipal Primary, 785 A.2d 146 (Pa. Cmwlth.2001).

At issue is not whether Provider improperly required Complainant to install a...