BEFORE THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Scott and Olivia Plummer :

:

v. : C-2016-2540892

:

National Fuel Gas Distribution Corporation :

ORDER GRANTING IN PART AND DENYING IN PART PRELIMINARY OBJECTIONS

HISTORY OF THE PROCEEDING

On May 20, 2016, Scott and Olivia Plummer (Complainants) filed a complaint with the Pennsylvania Public Utility Commission (Commission) against National Fuel Gas Distribution Corporation (Respondent or National Fuel). At paragraph 4 of the complaint form, the complaint states that Complainants are having a reliability, safety or quality problem with their utility service. Specifically, Complainants aver there were unsafe gas leaks on their property stemming from a gas line owned by National Fuel which runs under their driveway. Complainants request damages in the amount of $2,550 to compensate Complainants for driveway repairs and damages made by National Fuel to Complainant’s yard and garden. Alternatively, Complainants request the Commission direct National Fuel to repave the Complainants’ entire driveway.

On April 20, 2016, the complaint was served upon Respondent. The Respondent filed an answer with new matter and preliminary objection on May 10, 2016. The answer admits that Respondent repaired a line on or near Complainants’ property in June, 2009 and prior to any work conducted on the driveway by Complainants’ contractor. Respondent denies Complainants sustained any damage due to its crews working near Complainants’ property in 2014. Respondent admits to repairing a leak on Complainants’ property in April, 2014 and asserts that it repaired not only the section impacted, but the entire strip of asphalt across the driveway in order to ensure an adequate repair. The new matter asserts that if there was a verbal agreement between the parties regarding Complainants’ driveway, such agreement occurred in 2010, more than four years prior to the filing of the Complaint. Therefore, any breach of contract also occurred more than four years ago, beyond the statute of limitations. Accordingly, Respondent requests the complaint be barred by the statue of limitations and dismissed.

The preliminary objections contend that the requests for compensatory damages should be stricken from the Complaint because the Commission has no jurisdiction to award this impertinent relief.

By notice dated June 20, 2016, the Commission notified the parties that it had assigned the case to me as presiding officer and scheduled a hearing on July 15, 2016. As of the date of this decision, the Complainant has not filed an answer to either the Respondent’s new matter or its preliminary objections. The preliminary objections are ready for decision. For the reasons set forth below, I will grant in part and deny in part the preliminary objections and the hearing will proceed as scheduled.

DISCUSSION

The Commission’s Rules of Practice and Procedure permit parties to file preliminary objections. The grounds for preliminary objections are limited to those set forth in 52 Pa Code §5.101(a) as follows:

(1)  Lack of Commission jurisdiction or improper service of the pleading initiating the proceeding.

(2)  Failure of a pleading to conform to this chapter or the inclusion of scandalous or impertinent matter.

(3)  Insufficient specificity of a pleading.

(4)  Legal insufficiency of a pleading.

(5)  Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.

(6)  Pendency of a prior proceeding or agreement for alternative dispute resolution.

(7)  Standing of a party to participate in a proceeding.

Here the Respondent’s preliminary objections assert lack of Commission jurisdiction pursuant to 52 Pa. Code §5.101(a)(1) and impertinent matter in the complaint pursuant to 52 Pa. Code. §5.101(a)(2). I will first address the preliminary objection alleging that the Commission lacks jurisdiction to award damages.

Commission preliminary objection practice is analogous to Pennsylvania civil practice regarding preliminary objections. Equitable Small Transportation Intervenors v. Equitable Gas Company, 1994 Pa PUC LEXIS 69, Docket No. C00935435 (July 18, 1994) A preliminary objection asserting lack of Commission jurisdiction pursuant to the Commission’s Rules of Practice and Procedure is therefore analogous to preliminary objections allowed by Rule 1028 of the Pennsylvania Rules of Civil Procedure.

Preliminary objections in civil practice requesting dismissal of a pleading will be granted only where the right to relief is clearly warranted and free from doubt. Interstate Traveller Services, Inc. v. Pa. Dept. of Environment Resources, 406 A.2d 1020 (Pa. 1979); Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 595 A.2d 172 (Pa. Super. 1991) The Commission follows this standard. Montague v. Philadelphia Electric Company, 66 Pa. PUC 24 (1988)

The Commission may not rely upon the factual assertions of the moving party but must accept as true for purposes of disposing of the motion all well pleaded, material facts of the nonmoving party, as well as every inference from those facts. County of Allegheny v. Commonwealth of Pennsylvania, 490 A. 2d 402 (Pa. 1985); Commonwealth of Pennsylvania v. Bell Telephone Co. of Pa., 551 A.2d 602 (Pa. Cmwlth. 1988) The Commission must view the complaint in this case in the light most favorable to the Complainant and should dismiss the complaint only if it appears that the Complainant would not be entitled to relief under any circumstances as a matter of law. Equitable Small Transportation Intervenors v. Equitable Gas Company, 1994 Pa PUC LEXIS 69, Docket No. C-00935435 (July 18, 1994)

The Commission regulation at 52 Pa. Code §5.21(a) states that a person may file a formal complaint claiming violation of a statute that the Commission has jurisdiction to administer. The regulation at 52 Pa. Code §5.21(d) authorizes the Commission to dismiss a complaint if a hearing is not necessary and authorizes preliminary objections to be filed in response to a complaint.

The regulation at 52 Pa. Code §5.101(a)(1) permits the filing of a preliminary objection to dismiss a pleading for lack of Commission jurisdiction. The provision at 52 Pa. Code §5.101(a)(1) serves judicial economy by avoiding a hearing where no factual dispute exists. If no factual issue pertinent to the resolution of a case exists, a hearing is unnecessary. 66Pa. C.S. §703(a); Lehigh Valley Power Committee v. Pa. Pub. Util. Comm’n., 563A.2d557 (Pa. Cmwlth. 1989); Lehigh Valley Power Committee v. Pa. Pub. Util. Comm’n., 563A.2d548 (Pa. Cmwlth. 1989); S.M.E. Bessemer Cement, Inc. v. Pa. Pub. Util. Comm’n., 540A.2d1006 (Pa. Cmwlth. 1988); White Oak Borough Authority v. Pa. Pub. Util. Comm’n., 103A.2d502 (Pa. Super. 1954)

Accepting the facts alleged in the complaint as true for purposes of disposing of the preliminary objection, the Respondent alleges that the complaint contains impertinent material and requests monetary compensation relief for which the Commission has no authority to award. The Commission must view the complaint in the light most favorable to Complainant and should dismiss the complaint only if it appears that the Complainant would not be entitled to relief under any circumstances as a matter of law. Equitable Small Transportation Intervenors v. Equitable Gas Company, 1994 Pa PUC LEXIS 69, Docket No. C-00935435 (1994).

Viewing the Complaint in this case in the light most favorable to the Complainant, the issue of reasonableness of service is an issue over which the Commission has jurisdiction. 66 Pa. C.S. § 1501. The Commission can decide if a customer received inadequate service and can order civil penalties be paid for violations of Commission regulations and orders. 66 Pa. C.S. § 3301 et. seq. Any claim for compensation due to property damages caused by Respondent shall be stricken from the complaint because the Commission lacks subject matter jurisdiction over any claim for compensatory damages as that jurisdiction belongs to civil courts. Feingold v. Bell of PA., 777 Pa. 1, 282 A.2d 1191 (1977), 1977 Pa. LEXIS 957.

The Commission, as a creation of the General Assembly, has only the powers and authority granted to it by the General Assembly contained in the Public Utility Code. Tod and Lisa Shedlosky v. Pennsylvania Electric Co., Docket No. C-20066937 (Order entered May28,2008); Feingold v. Bell Tel. Co. of Pa., 383 A.2d 791 (Pa. 1977) The Commission must act within, and cannot exceed, its jurisdiction. City of Pittsburgh v. Pa. Pub. Util. Comm’n., 43 A.2d 348 (Pa Super. 1945) Jurisdiction may not be conferred by the parties where none exists. Roberts v. Martorano, 235 A.2d 602 (Pa. 1967) Subject matter jurisdiction is a prerequisite to the exercise of power to decide a controversy. Hughes v. Pennsylvania State Police, 619 A.2d 390 (Pa. Cmwlth. 1992) alloc. denied 637 A.2d 293 (Pa. 1993).

Accordingly, the Commission has no jurisdiction to determine whether Complainant is entitled to compensatory damages and that relief will be stricken from the complaint. The remainder of the complaint will proceed to the scheduled hearing. As it is admitted repairs to the pipe under the driveway were made by Respondent on Complainants’ property as recently as April, 2014, and repairs to the driveway were completed in June 2014, the statute of limitations does not barr Complainant from raising an issue as to whether they have received reasonable and safe service within the past 4 years. 52 Pa. Code § 56.14; 42 Pa. C.S. § 5525(a).

ORDER

THEREFORE,

IT IS ORDERED:

1. That the preliminary objections filed by National Fuel Gas Distribution Company at Docket No. C-2016-2540892 are granted in part and denied in part.

2. That any issue regarding compensation be stricken from the complaint of Scott and Olivia Plummer at Docket No. C-2016-2540892 against National Fuel Gas Distribution Company.

3. That the remaining issues regarding reasonableness of service and safety shall proceed to hearing scheduled for July 15, 2016.

Date: June 22, 2016

Elizabeth H. Barnes

Administrative Law Judge

6

C-2016-2540892 - SCOTT & OLIVIA PLUMMER v. NATIONAL FUEL GAS DISTRIBUTION CORPORATION


SCOTT & OLIVIA PLUMMER
162 DONATION ROAD
GREENVILLE PA 16125
724.456.0198
LUKE E ANDERSON ESQUIRE
NATIONAL FUEL GAS DISTRIBUTION CORPORATION
PO BOX 2081
ERIE PA 16512
814.871.8077
-ACCEPTS E-SERVICE-