PENNSYLVANIA

PUBLIC UTILITY COMMISSION

Harrisburg, PA 17105-3265

Public Meeting held May 11, 2000

Commissioners Present:

John M. Quain, Chairman

Robert K. Bloom, Vice Chairman

Nora Mead Brownell

Aaron Wilson, Jr.

Terrance J. Fitzpatrick

Andrew S. Genetta / C-00992206
v.
PECO Energy

OPINION AND ORDER

BY THE COMMISSION:

Before the Commission for consideration and disposition are the Exceptions filed December 21, 1999, by PECO Energy Company (Respondent), to the Initial Decision (I.D.) of Administrative Law Judge (ALJ) Ky Van Nguyen, issued December1, 1999, which sustained the Complaint, in part, and ordered that the Respondent pay a civil penalty of $200.00 to the Commission. A letter, purported to be Reply Exceptions, was filed by Andrew S. Genetta (Complainant). However, the letter did not address any specific issues and merely requested that we incorporate the contents of the Complainant’s original Brief as Reply Exceptions.

History of the Proceeding

On March 8, 1999, the Complainant filed a Formal Complaint (Complaint) with the Commission against the Respondent. The Complaint alleged that the Respondent failed to maintain the trees around the property lines even though it had an easement and a concomitant responsibility to maintain the trees. The Complaint further requested that the Respondent be ordered to pay $1,000.00 to further compensate the owner for property damages incurred as a result of the Respondent’s failure to maintain the vegetation.

Subsequently, on April 1, 1999, the Respondent filed an Answer to the Complaint. In its Answer, the Respondent admitted that it received a report that, during a wind/rain storm, a pole and transformer were on fire at the above-referenced property due to a tree limb in the wires. (Answer, p. 1, Para. 3). However, the Respondent specifically denied that it caused the tree to fall or the damage to the property.

An Initial Hearing was scheduled for August 2, 1999, and was rescheduled to and held on for September14, 1999, at the request of the Complainant. As a result, the ALJ requested that the Parties file Briefs on the issues of jurisdiction, easement, and the limitation of liability. Thereafter, on December 1, 1999, the ALJ’s Initial Decision was issued. Per letter dated December28, 1999, the Complainant incorporated the contents of his original Brief as Reply Exceptions.

Discussion

It is important to note with respect to exceptions, as a preliminary matter, that any issue or Exception which is not specifically addressed herein has been fully considered, denied and will not be further discussed. It is well settled that we are not required to consider expressly or at length each Exception or argument raised by the Parties. Consolidated Rail Corporation v. PA PUC, 625 A.2d 741 (Pa. Cmwlth. Ct.1993); also see generally, University of Pennsylvania v. Pa. PUC, 485 A.2d 1217 (Pa.Cmwlth. Ct. 1984).

As the party seeking affirmative relief in a matter, a complainant bears the burden of proof. (66Pa. C.S. §332(a)). The Pennsylvania Supreme Court has held that the term “burden of proof” means a duty to establish a fact by a preponderance of the evidence. Se-Ling Hosiery v. Margulies, 364 Pa. 45, 70 A.2d 854 (1950). The term “preponderance of the evidence” means that one(1) party has presented evidence which is more convincing, by even the smallest amount, than the evidence presented by the other side. If a party has satisfied its burden of proof, it must then be determined whether the opposing party has submitted evidence of “co-equal” value or weight to refute the first party’s evidence. Morrisseyv. PA Dept. of Highways, 424 Pa. 87, 225 A.2d 895 (1987).

Furthermore, any order of this Commission must be based on substantial evidence. Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 337A.2d 922, 925 (Pa. Cmwlth. Ct.,1975). The term “substantial evidence” has been defined by the Pennsylvania courts as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. More is required than a mere trace of evidence or a suspicion of the existence of a fact sought to be established. Murphy v. Dept. of Public Welfare, White Haven Center, 480 A.2d 382, 386 (85Pa. Cmwlth. Ct.23, 1994); Erie Resistor Corporation v. Unemployment Compensation Board of Review, 194 Pa. Superior Ct.278, 166A.2d 96, 97 (1961).

The Complainant alleges that the Respondent’s failure to maintain the vegetation, relative to its easement, caused the damage to the Complainant’s property and, hence, violated the Public Utility Code (Code). The record in this case does not support the Complainant’s claim. The ALJ concluded that the Respondent violated Section1501 of the Code, 66Pa. C.S. §1501, in that the Respondent failed to provide reasonable and adequate vegetation maintenance along its right-of-way which crosses the Complainant’s property.

We shall now address the Exceptions of PECO taken to the Initial Decision of ALJ Nguyen.

In its Exception No.1, PECO contends that the ALJ’s conclusion that PECO violated Section1501 is erroneous. PECO contends that the ALJ found that a major management policy was unreasonable without conducting an on the record examination of that policy. Furthermore, PECO argues that it is well settled that the burden of proof is on the party claiming that the utility failed to provide adequate service (Exc., p.3). PECO rejoins that the Complainant failed to offer any evidence showing that its regulation management policy is inadequate or unreasonable.

The Complainant’s position on this issue is that an entity granted the benefit of an easement across another’s property has the concomitant responsibility of maintaining the easement at its own expense. The Complainant further contends that PECO failed to make a distinction, on the record, between primary power lines and secondary power lines. In fact, the Complainant retorts that the distinction between primary and secondary is meaningless (C. Brief, p.5).

We note that Section 1501 of the Code requires every public utility to “furnish and maintain adequate, efficient, safe, reasonable services and facilities, [and to] make all such repairs . . . as shall be necessary for the accommodation, convenience, and safety of its patrons, employees, and the public.” (66 Pa. C.S. §1501). In recent years, the Commonwealth Court has added vegetation maintenance to the statutory definition of the word “service” found at 66 Pa. C.S. §102 and §1501. Removal or maintenance of trees is now within the field of issues which the Commission has the authority to determine in the context of furnishing reasonable and adequate service. (West Penn Power Co. v. PA PUC, 578 A.2d 75 (Pa. Cmwlth. Ct.1990).

The Complainant in this case has alleged that a fire started on the power lines because the tree was rubbing against the power lines during a wind and rainstorm. (Complaint, p. 1). The Complainant does not establish that the trees were either overgrown or problematic prior to the wind and rainstorm in May of 1998. To the contrary, the Complainant asserts that the wind and rainstorm caused the tree to either lean on, or rub against the power lines, ultimately causing the fire. (Complaint, p.1). The Complainant has failed to meet his burden of proof to sustain any violation of the Code and the Commission’s Regulations.

Accordingly, PECO’s Exception No.1 is granted.

In its Exception No.2, PECO contends that it has not violated the Code or the Commission’s Regulations and, therefore, has been fined improperly under Section3301 of the Code, 66Pa. C.S. §3301. PECO argues that the presiding ALJ erroneously relied upon a perceived lack of difference between primary and secondary power lines to find that PECO had an affirmative duty to manage all levels of vegetative interference (Ex., p.5). PECO contends that it never rendered inadequate service and as such the imposition of a fine is inappropriate.

We have reviewed the record as developed in the proceeding in light of the applicable law and established precedent. Contrary to the assertions of the Complainant, we note that PECO cleared branches form the secondary lines on July1, 1998 (I.D., p.7). Again on July15, 1998, PECO did substantial tree trimming. (I.D., pp.78). Additionally, the record indicates that on July15, 1998, PECO issued a check to the Complainant in the amount of $595 indicating a “release and settlement of all claims.” Ostensibly, the Complainant initiated a second claim for damages approximately two(2) months later (Tr., p.16).

It is well settled that we do not have the jurisdiction or the discretion to award monetary damages. Elkinv. Bell, 491 Pa.123; 420A.2d 371 (1980); Feingoldv. Bell, 477Pa.1; 383A.2d 791 (1977). Premised upon our review of the record as developed in this proceeding, we conclude that the Complainant has not met his burden of demonstrating that PECO’s management policy regarding tree trimming near secondary lines is unreasonable and constitutes inadequate service under 66Pa. C.S. §1501. As a result, the imposition of a civil penalty is inappropriate.

Therefore, PECO’s Exception No.2 is granted.

Conclusion

We have reviewed the record as developed in this proceeding including the Briefs, Transcript, the ALJ’s Initial Decision and the Exceptions filed thereto. Based on our review we conclude that PECO’s Exceptions are meritorious. Accordingly, we shall grant PECO’s Exceptions and reject the ALJ’s recommendation; THEREFORE,

IT IS ORDERED:

1.That the Exceptions filed by PECO Energy Company on December21, 1999, to the Initial Decision of ALJ Ky Van Nguyen issued on December1, 1999, are granted, consistent with this Opinion and Order.

2.That the Initial Decision of Administrative Law Judge KyVan Nguyen is rejected, consistent with this Opinion and Order.

3.That the Complaint filed by Andrew Genetta Esquire, at Docket No.C00992206, is dismissed for failing to meet the burden of proof as required by Section332(a) of the Public Utility Code, 66Pa. C.S. §332(a).

BY THE COMMISSION,

James J. McNulty

Secretary

(SEAL)

ORDER ADOPTED: May 11, 2000

ORDER ENTERED:

1