              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Lancaster, Borough of Carlisle, :
and Borough of Columbia,                :
                   Petitioners          :
                                        :   No. 251 M.D. 2019
            v.                          :
                                        :   Argued: December 12, 2019
Pennsylvania Public Utility             :
Commission ,                            :
                   Respondent           :



BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                     FILED: February 21, 2020


            Before this Court in our original jurisdiction are the preliminary
objections (POs) of the Pennsylvania Public Utility Commission (PUC or
Commission) to the petition for review (PFR) filed by the City of Lancaster, Borough
of Carlisle, and Borough of Columbia (collectively, Municipalities). For the reasons
that follow, we sustain the POs in part and overrule them in part and, in so
determining, dismiss Count I with prejudice and permit Count II to proceed.
                                          Background
               On April 29, 2019, the Municipalities filed a PFR in the nature of a
complaint seeking relief under the Declaratory Judgments Act1 and averred as
follows.
               The Municipalities have each created Historic Districts pursuant to what
is commonly known as the Historic District Act (Act).2 Through the enactment of
ordinances, the Municipalities have established rules and regulations applicable in
their Historic Districts (Historic District Ordinances). (PFR, ¶¶8-14.)

               15. The Municipalities, including properties located in
               the Historic Districts, are served by a natural gas
               distribution company [NGDC], operating pursuant to the
               rules and regulations of the PUC.

               16. Section 59.18 of the PUC’s regulations, 52 Pa. Code
               §59.18 [52 Pa. Code §59.18 or Section 59.18] contains the
               PUC’s regulations for gas meter, regulator, and service line
               location.

               17. On May 22, 2014, the PUC adopted a final
               rulemaking order amending 52 Pa. Code §59.18 (the “Final
               Rulemaking Order”).

               18. Prior to its amendment by the Final Rulemaking
               Order, Section 59.18 permitted meters to be located:
               “[i]nside the building, preferably in a dry, well-ventilated
               place not subject to excessive heat, and as near as possible
               to the point of entrance of the pipe supplying service to the
               building.”

               19. In its Final Rulemaking Order, the PUC amended
               Section 59.18 to require: “[u]nless otherwise allowed or

      1
          42 Pa.C.S. §§7531-7541.

      2
          Act of June 13, 1961, P.L. 282, No. 167, as amended, 53 P.S. §§8001-8006.



                                                2
               required in this section, meters and regulators must be
               located outside and aboveground.”        52 Pa. Code
               §59.18(a)(1).

               20. Section 59.18(d) permits utilities to locate meters in
               the interior of buildings under certain limited circumstances
               . . . .[3]


     3
         In pertinent part, 52 Pa. Code §59.18 provides as follows:

               §59.18. Meter, regulator and service line location.

               (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.

                                             *       *       *

               (d) Inside meter locations.

               (1) Inside meter locations shall be considered only when:
               (i) The service line pressure is less than 10 psig [pounds per square
               inch].
               (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 [Act] or a
               municipal home rule charter.
               (D) A building is located within a locally designated historic district
               or is eligible for the listing, or a building is individually designated
               under a local ordinance as a historic landmark or is eligible for the
               listing.
(Footnote continued on next page…)

                                                     3
              21. The [NGDC] serving the Municipalities has
              commenced, in all three municipalities, a meter relocation
              program pursuant to [52 Pa. Code §59.18].

              22. The [NGDC] serving the Municipalities has relocated
              meters from the interior of buildings to the exterior of
              buildings in the Historic Districts of all three municipalities.

              23. Under [52 Pa. Code §59.18], the PUC is vested with
              absolute discretion in the [NGDC], allowing the [NGDC] to
              perform its meter relocations without complying with the
              Historic District Ordinances and with no regard for the
              effect on the Historic Districts.

                                       *      *      *

              43.    In applying Section 59.18 within the territorial limits
              of the Municipalities, the PUC has required utilities to
              locate meters in exterior locations in the Historic Districts
              without consideration of the Historic District Ordinances.

              44. The [NGDC] serving the Municipalities has relocated
              meters to exterior locations in the Historic Districts without
              consideration for the Historic District Ordinances or the
              effect on the Historic Districts.
(PFR, ¶¶15-23, 43-44.)
              In Count I, the Municipalities allege that 52 Pa. Code §59.18
contravenes article I, section 27 of the Pennsylvania Constitution, Pa. Const. art. I,

(continued…)

              (iii) Protection from ambient temperatures is necessary to avoid
              meter freeze-ups.
              (iv) A utility determines that a meter is subject to a high risk of
              vandalism based on the utility’s prior experience.
              (v) A utility determines that an outside meter location is neither
              feasible nor practical.

52 Pa. Code §59.18(a), (d)(1).



                                              4
§27, known as the Environmental Rights Amendment (ERA).4 The Municipalities
aver that 52 Pa. Code §59.18 “fails to protect the historic resources of the
Commonwealth,” (PFR, ¶41), in the following particulars:

                  a.    Making interior location of meters in historic districts
                  the exception, rather than the rule.

                  b.     Failing to set standards a utility must follow when
                  installing a meter in a historic district, to protect historic
                  resources.

                  c.      Leaving ultimate determination of the location of
                  meters in historic districts at the sole discretion of the public
                  utility.

                  d.     Purporting to exempt public utilities from local
                  historic district requirements.

                  e.     Failing to require public utilities to comply with local
                  historic district permitting requirements.

                  f.    Failing to define the “consideration” required of
                  public utilities when locating meters in historic districts.

                  g.     The word “only” in the introductory sentence to
                  Section 59.18(d)(1) suggests that whether or not a utility
                  need even consider indoor meter location in historic
                  districts is entirely at its discretion . . . .


        4
            This constitutional proviso provides:

                  The people have a right to clean air, pure water, and to the
                  preservation of the natural, scenic, historic and esthetic values of the
                  environment.     Pennsylvania’s public natural resources are the
                  common property of all the people, including generations yet to come.
                  As trustee of these resources, the Commonwealth shall preserve and
                  maintain them for the benefit of all the people.

Pa. Const. art. I, §27.



                                                     5
            h.    The word “only” in the foregoing sentence
            discourages indoor meter location in historic districts.
(PFR, ¶41(a)-(h).)   For relief, the Municipalities request an order declaring 52 Pa.
Code §59.18 unconstitutional and decreeing “that the placement of meters shall be
subject to any ordinance properly adopted by a Pennsylvania municipality pursuant to
the [] Act.” (PFR, Count I, Wherefore clause.)
            In Count II, the Municipalities assert that 52 Pa. Code §59.18 constitutes
an improper “sub-delegation” of legislative authority to private entities, i.e., NGDCs.
According to the Municipalities, “the PUC has granted public utilities unfettered
discretion to determine whether meters will be located on the interior or exterior of
homes in historic districts within the territorial limits of the Municipalities” and,
therefore, 52 Pa. Code §59.18 “is an invalid and unconstitutional sub[-]delegation of
its statutorily-imposed obligation to make and enforce regulations not contrary to
law.” (PFR, ¶¶55, 57.) For relief, the Municipalities request an order declaring 52
Pa. Code §59.18 unconstitutional and decreeing “that the placement of meters shall
be subject to any ordinance properly adopted by a Pennsylvania municipality
pursuant to the [] Act.” (PFR, Count II, Wherefore clause.)
            On June 26, 2019, the PUC filed six POs. Initially, the PUC asserted a
demurrer to Count I, contending that this cause of action, as pled, is legally
insufficient and effectively foreclosed based upon preemption principles and our
decision in UGI Utilities, Inc. v. City of Reading, 179 A.3d 624 (Pa. Cmwlth. 2017).
The PUC further asserted that Counts I and II should be dismissed because the
Municipalities failed to exhaust available administrative remedies and failed to join a
necessary party, i.e., the NGDC that allegedly refused to locate gas meters inside
certain buildings. In addition, the PUC contended that Counts I and II should be
dismissed on the grounds that the Municipalities failed to aver facts sufficient to


                                          6
demonstrate that they sustained direct and immediate harm; the allegations are legally
insufficient to justify pre-enforcement review of 52 Pa. Code §59.18; and the
Municipalities are seeking an advisory opinion in that they have not alleged the
existence of an actual case or controversy.
                 On August 9, 2019, the Municipalities filed an answer to the POs.
Thereafter, the parties filed briefs in support of their respective positions.                   On
December 12, 2019, this Court entertained oral argument on the POs. We now turn
to the merits of those POs.


                                           Discussion5
                                            PO No. 1
                 In its first PO, the PUC contests the legal sufficiency of Count I,
contending that the averments fail to state a claim upon which relief can be granted.
The PUC asserts that in PPL Electric Utilities Corp. v. City of Lancaster, 214 A.3d
639 (Pa. 2019), our Supreme Court broadly held that the General Assembly intended
its regulatory framework to occupy the entire area of utility regulation at the state
level.       Consequently, the PUC submits, as a matter of “field preemption,” its
regulations, including 52 Pa. Code §59.18, supersede any local regulation or
ordinance that falls within the ambit of that field. From this premise, the PUC argues

         5
          In reviewing preliminary objections, all material facts averred in the petition for review,
and all reasonable inferences that can be drawn from them, are admitted as true. Vattimo v. Lower
Bucks Hospital, Inc., 465 A.2d 1231, 1232 (Pa. 1983); Fletcher v. Pennsylvania Property &
Casualty Insurance Guaranty Association, 914 A.2d 477, 479 n.2 (Pa. Cmwlth. 2007), aff’d, 985
A.2d 678 (Pa. 2009). However, a court need not accept as true conclusions of law, unwarranted
inferences, argumentative allegations, or expressions of opinion. Portalatin v. Department of
Corrections, 979 A.2d 944, 947 (Pa. Cmwlth. 2009). “Preliminary objections should be sustained
only in cases that are clear and free from doubt.” Pennsylvania AFL-CIO v. Commonwealth, 757
A.2d 917, 920 (Pa. 2000).



                                                 7
that “the Municipalities failed to reconcile that the [ERA] was [not] enacted until
1971 and that it is silent on the impacts of long-standing, pre[]existing law involving
regulation of public utilities without expressly referring to the topic.” (PUC’s Br. at
12.) At its essence, the PUC maintains that the ERA does not apply to its regulations
given the longstanding and broad nature of the grant of legislative authority that the
General Assembly has bestowed upon it as a regulatory agency.
              In addition, the PUC relies on our decision in City of Reading and reads
that case as barring (or, at bare minimum, severely undermining) the Municipalities’
claim that 52 Pa. Code §59.18 flouts the ERA.              Addressing the merits of the
Municipalities’ ERA claim in a more direct fashion, the PUC contends that

              the Municipalities’ argument as to the constitutionality of
              Section 59.18 relies completely on the historical aesthetic of
              the alleged affected buildings. It is not the intent of Section
              59.18 to diminish the aesthetic of historic buildings, but
              instead its intent is to protect those historic buildings from
              having an inside gas meter that would pose a risk of
              exploding. In this respect, Section 59.18 serves to fully
              carry out[6] the spirit of the [ERA] in that it ultimately seeks
              to protect these historic buildings from having an unsafe gas
              meter location that could increase the risk of explosion.
(PUC’s Br. at 13-14.)
              In response, the Municipalities concede that, as a general matter, the
regulation of utilities is a matter of statewide concern, the legislative efforts in the
area are entitled to the status of field preemption and, pursuant to this principle and
our decision in City of Reading, the Historic District Ordinances are preempted. The
Municipalities, however, distance their legal challenge from the preemption doctrine,


       6
        The Court expresses no view on the current debate among (or amongst) the grammaticians
surrounding the so-called “split infinitive.”



                                              8
arguing that the case law cited and relied upon by the PUC is inapposite because
those cases “dealt with the question of whether a local ordinance was preempted by
[a] PUC regulation” and “[t]he validity of the PUC regulation was not in question.”
(Municipalities’ Br. at 15.) The Municipalities assert that here, by contrast, the
“question posed . . . is whether [a] PUC regulation is valid,” id. at 17, and for support,
they cite authority from this Court holding that the PUC, as a regulatory body, is
bound by and must adhere to the constitutional restrictions imposed by the ERA.
             With respect to our decision in City of Reading, the Municipalities
contend that any discussion in that case regarding the interplay between 52 Pa. Code
§59.18 and the ERA was merely dicta.            The Municipalities also devote a notable
portion of their brief advancing the argument and explaining why the ERA applies to
the regulations promulgated by the PUC and how the ERA encompasses and protects
the “historic resources” of the Commonwealth, which necessarily includes buildings
that have been designated as having cultural significance at the local level. While the
Municipalities assert that the PUC is acting as a “trustee” of these “historic
resources,” and emphasize that 52 Pa. Code §59.18 is subject to their facial challenge
under the ERA, the Municipalities fail to argue, on a substantive level, that they have
alleged a colorable claim on the merits. Further, in their PFR and brief in opposition
to the POs, the Municipalities do not point to any provision of the Historic District
Ordinances that is in conflict with 52 Pa. Code §59.18 or would otherwise have an
allegedly beneficial effect on the buildings they claim are “historical resources.”
             As a preliminary matter, we note that in their request for relief for Count
I (and also Count II), the Municipalities, in part, seek an order decreeing “that the
placement of meters shall be subject to any ordinance properly adopted by a
Pennsylvania municipality pursuant to the [] Act.” (PFR, Count I, Wherefore clause.)



                                            9
However, even if the Court were to conclude that 52 Pa. Code §59.18 was unlawful
or invalid, as a practical matter, it is likely that the Historic District Ordinances would
still be preempted and thus inoperable. This is because, in enacting the Public Utility
Code,7 the General Assembly intended to occupy the entire regulatory field, and the
net result is that “we must reject all local regulation fairly encompassed by that field.”
PPL Electric Utilities Corp., 214 A.3d at 655. Our Supreme Court has already
concluded that “matters pertaining to the location of utility facilities lie within the
ambit of the PUC’s regulatory authority” and that, therefore, ordinances pertaining to
the “relocation and removal of utility facilities [] lie within the preempted field.” Id.
at 655-56. Nonetheless, and notwithstanding the apparent preemption of the Historic
District Ordinances, the Municipalities also seek a declaration that 52 Pa. Code
§59.18 runs afoul of the ERA. On this note, if the Court were to deem this regulation
unlawful and invalid, it is quite possible that the PUC would lack the legal authority
to require meters to be located outside of a structure and above ground, irrespective
of whether the Historic District Ordinances would remain preempted. We conclude,
therefore, that preemption principles do not serve as a complete obstacle to the
Municipalities’ ERA claim.
               We thus turn to the merits of the Municipalities’ ERA claim.             In
Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911
(Pa. 2017) (PEDF), our Supreme Court reaffirmed the legal principles pronounced by
a plurality of the court in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa.
2013) (plurality). In PEDF, our Supreme Court observed that the third sentence of
the ERA “establishes a public trust, pursuant to which the natural resources are the
corpus of the trust, the Commonwealth is the trustee, and the people are the named

      7
          66 Pa.C.S. §§101-3316.



                                            10
beneficiaries.” PEDF, 161 A.3d at 931-32. The Supreme Court also clarified that
“[t]rustee obligations are not vested exclusively in any single branch of
Pennsylvania’s government, and instead all agencies and entities of the
Commonwealth government, both statewide and local, have a fiduciary duty to act
toward the corpus with prudence, loyalty, and impartiality.”                     Id. at 931 n.23
(emphasis added). Indeed, as correctly noted by the Municipalities in their brief,
there are “several cases in which this Court has [] subjected the PUC to review
pursuant to [the ERA].” (Municipalities’ Br. at 18-19.)8 Therefore, insofar as the
PUC contends that because its statutory authority as a public utility predates the ERA,
the Municipalities cannot challenge 52 Pa. Code §59.18 under the ERA, we find that
this argument lacks merit.
               Having concluded that the ERA applies to the PUC and that 52 Pa. Code
§59.18 must comply with the mandate of the ERA, we now determine whether the
Municipalities have pled a cognizable claim thereunder.


       8
          Citing Energy Conservation Council of Pennsylvania v. Public Utility Commission, 25
A.3d 440, 446-47 (Pa. Cmwlth. 2011) (“Any decision by the PUC as to the environmental impact of
[high-voltage] lines must be set against the backdrop of Article I, Section 27, of the Pennsylvania
Constitution.”); O’Connor v. Pennsylvania Public Utility Commission, 582 A.2d 427, 430-33 (Pa.
Cmwlth. 1990) (addressing an ERA challenge to the PUC’s approval of an electric company’s
application to obtain an exemption from local zoning laws for a proposed facility); Del-AWARE
Unlimited, Inc. v. Pennsylvania Public Utility Commission, 513 A.2d 593, 595 (Pa. Cmwlth. 1986)
(same, with respect to the PUC’s approval of the siting for a pumphouse).

        We recognize that, in the decisions cited by the Municipalities, this Court applied the three-
fold test developed in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973) (en banc), to determine
whether a violation of the ERA had occurred, a test which was subsequently disapproved and
overruled by our Supreme Court in PEDF. In any event, these cases reflect the general point that
the PUC and its adjudicatory decisions and regulations are subject to the ERA, which is consonant
with the Supreme Court’s statement in PEDF that all agencies of the Commonwealth are bound by
the ERA.



                                                 11
             Seemingly, consistent with the plain language of the ERA itself, see
supra note 4, our Supreme Court has endorsed the view that “historical sites” are
considered part of our “public natural resources” for purposes of the ERA and, thus,
“are subject to the same consideration as strictly environmental resources.” United
Artists’ Theater Circuit, Inc. v. City of Philadelphia, 635 A.2d 612, 620 (Pa. 1993)
(quoting Commonwealth v. National Gettysburg Battle Tower, Inc., 311 A.2d 588,
595 (Pa. 1973) (Roberts, J., concurring)). As such, we assume that the PUC, as a
trustee, has a duty to administer the trust with prudence, which involves consideration
of the purposes and circumstances of the trust and requires the exercise of reasonable
care, skill, and caution when dealing with the corpus of the trust, i.e., the buildings in
the Historic Districts protected by the Historic District Ordinances. PEDF, 161 A.3d
at 932 & n.24. More specifically, the ERA imposes upon the PUC “a duty to prohibit
the degradation, diminution, and depletion of our public natural resources, whether
these harms might result from direct state action or from the actions of private
parties.” Id. at 933.
             At its core, the ERA “protects the people from governmental action that
unreasonably causes actual or likely deterioration” of the public natural resources.
Robinson Township, 83 A.3d at 953. Stated in somewhat different terms, “to achieve
recognition of the[] rights enumerated in the first clause of [the ERA] as ‘inviolate’
necessarily implies that economic development [or some other regulatory measure]
cannot take place at the expense of an unreasonable degradation of the [public nature
resources].” Id. at 954. Instead, “when government acts, the action must, on balance,
reasonably account for the [historical] features of the affected locale.” Id. at 953.
Recently, in Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677
(Pa. Cmwlth. 2018) (en banc), this Court formulated the test to be used under the



                                           12
ERA. We concluded that judicial review of governmental action entails a two-step
inquiry “to determine, first, whether the values in the first clause of the [ERA] are
implicated and, second, whether the governmental action unreasonably impairs those
values.” 196 A.3d at 695.
             Notably, as pertains here, 52 Pa. Code §59.18—which, despite being
administrative in nature, is legislative in character—is presumed to be constitutional,
and the challenger carries the duty and heavy burden of proving otherwise. See
Department of Environmental Resources v. Metzger, 347 A.2d 743, 745 (Pa. Cmwlth.
1975). In this case, the Municipalities, by their own insistence, mount a facial
challenge to the constitutionality of 52 Pa. Code §59.18. See Municipalities’ Br. at
25 (“[T]he Municipalities’ [PFR] is a facial challenge to Section 59.18.”). As our
Supreme Court has acknowledged, a facial challenge will fail where the law has a
plainly legitimate sweep. Clifton v. Allegheny County, 969 A.2d 1197, 1223 (Pa.
2009).
             Under 52 Pa. Code §59.18(a)(1), the general rule is that “[u]nless
otherwise allowed or required in this section, meters and regulators must be located
outside and aboveground.” Id. With respect to choosing the location of the meters,
the regulation, in pertinent part, provides the following guideposts: “(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”; and “(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.” 52 Pa. Code §59.18(a)(5)-(7).




                                          13
             In prohibitory language, the regulation further states that “(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 State building codes,” or “(vi) In contact with soil or other potentially
corrosive materials.” 52 Pa. Code §59.18(a)(8)(i)-(vi).
             Additionally, pursuant to 52 Pa. Code §59.18(b), governing outside
meter or regulator locations, “[o]utside meters or service regulators shall be installed
in one of the following locations”: (1) “When feasible and practical to do so,
aboveground in a protected location adjacent to the building served, or as close as
possible to the point where a production or transmission line is tapped”; or “(2) In a
buried vault or meter box.” 52 Pa. Code §59.18(b)(1)-(2).
             Here, upon our review of these regulatory provisions, we conclude that
while 52 Pa. Code §59.18, on its face, may “implicate” the preservation of historic
values, the Municipalities have failed to allege facts sufficient to establish that the
regulation, more likely than not, has or will result in an “unreasonable degradation”
of these values. To be sure, the Municipalities aver that specific action has been
taken by an NGDC to relocate meters in exterior locations in the Historic Districts.
(PFR, ¶¶21-22, 43-44.) However, there is no allegation in the PFR that the buildings




                                          14
in these Historic Districts have suffered any type of specific, or even symbolic, harm
or degradation to the aesthetic/scenic or concrete values that they represent or depict.9
                In any event, the “particulars,” or manners in which the Municipalities
have averred that 52 Pa. Code §59.18 has brought or will bring about resulting harm,
standing alone, are simply too abstract to demonstrate that it is reasonably likely that
some type of harm has or will occur. Likewise, the mere placement of a meter on the
outside, aboveground portion of a building in a Historic District in one of the places
enumerated in the regulation does not provide support for a conclusion that harm will
necessarily follow. Comparatively, this is in stark contrast to the facial challenge that
there would be unavoidable and inevitable consequences to the environment from the
oil and gas operations conducted under section 3304 of Act 13 of 2012,10 58 Pa.C.S.
§3304, and the lack of adequate measures in the statute to ensure the safety and
preservation of the Commonwealth’s environmental resources.                           See Robinson
Township, 83 A.3d at 975 (“[D]evelopment of the natural gas industry in the
Commonwealth unquestionably has and will have a lasting, and undeniably
detrimental, impact on the quality of these core aspects of Pennsylvania’s
environment, which are part of the public trust.”). Here, however, the Court cannot
sustain such an inference.
                Based on the averments of the PFR and the language of 52 Pa. Code
§59.18, the adverse consequences, if any, of relocating a meter or meters on the
outside portion of a building in one of the Historic Districts are not plain, in the

       9
         Perhaps, this omission from the PFR could be intentional given the nature of the
Municipalities’ facial challenge; perhaps, it is an implicit telling as to the reason for the absence or
exclusion, for, “in some circumstances, silence speaks volumes.” United States v. Suarez-Reyes,
910 F.3d 604, 608 (1st Cir. 2018).

       10
            Act of February 14, 2012, P.L. 87, 58 Pa.C.S. §§2301-3504.



                                                  15
obvious sense, and can only be imagined by the Court through the conjuring of
mental images. Quite simply, such conjecture and speculation, reimagined into
factual circumstance whereby inferences need be stacked upon inferences, are
insufficient to establish that a regulation is unconstitutional on its face.        See
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 454-
58 (2008); cf. Commonwealth v. Yobbagy, 188 A.2d 750, 752 (Pa. 1963); Clark v.
Pfizer Inc., 990 A.2d 17, 27-28 (Pa. Super. 2010); Commonwealth v. Johnson, 818
A.2d 514, 521 (Pa. Super. 2003).
             In determining whether a law is facially invalid, a court cannot go
beyond the law’s “facial requirements and speculate about ‘hypothetical’ or
‘imaginary’ cases.”    Clifton, 969 A.2d at 1222 (internal citation and alterations
omitted). To the extent that the Court can pictorialize harmful effects to the building
in the Historic Districts, we can only do so by assuming and selecting arbitrary,
hypothetical facts from a multitude of variables—e.g., the size of the meter, what the
building looks like, where the meter is located in relation to the building, whether or
if the meter defaces or otherwise interferes with some sort of historical characteristic
of the building and/or property, such as distinctive signage or a garden of historical
significance—to create a factitious, particular set of circumstances from endless
possibilities. Standing alone, this speculative imagery is not enough to give credence
to the Municipalities’ claim under the ERA and establish that 52 Pa. Code §59.18
causes “actual or likely deterioration,” or an “unreasonable impairment” of historical
values, as opposed to no “deterioration” or “impairment” whatsoever, or a relatively
innocuous “deterioration” or “impairment” of those same values.               Robinson
Township, 83 A.3d at 953-54; see also Commonwealth v. National Gettysburg
Battlefield Tower, Inc., 302 A.2d 886, 895 (Pa. Cmwlth.) (en banc), aff’d, 311 A.2d



                                          16
588 (Pa. 1973) (“It is difficult to conceive of any human activity that does not in
some degree impair the natural, scenic and esthetic values of any environment. If the
standard of injury to historic values is to be that expressed by the Commonwealth’s
witnesses as an ‘intrusion’ or ‘distraction,’ it becomes difficult to imagine any
activity in the vicinity of Gettysburg which would not unconstitutionally harm its
historic values.”), and compare with Feudale v. Aqua Pennsylvania, Inc., 122 A.3d
462, 464, 468 (Pa. Cmwlth. 2015), aff’d, 135 A.3d 580 (Pa. 2016) (applying the
Payne test, see supra note 8, and noting the petitioner’s allegations that timbering
activities undertaken by a private company and the Department of Conservation and
Natural Resources [DCNR] would affect “a uniquely picturesque and accessible part”
of the Roaring Creek Tract and would destroy “a large swath of scenic forest and
result in the degradation of the area’s natural and historic aesthetic” and concluding
that “[m]erely alleging that DCNR’s proposed action will do harm to the Roaring
Creek Tract is insufficient to establish a claim under the [ERA]”).
               Moreover, the Municipalities have failed to demonstrate, through well-
pled facts, that in adopting 52 Pa. Code §59.18 or the Final Rulemaking Order, the
PUC did not adequately consider the features surrounding the historic sites.11 In City

       11
          We are cognizant that the Municipalities baldy allege that the “[NGDC] serving the
Municipalities has relocated meters to exterior locations in the Historic Districts without
consideration for the Historic District Ordinances or the effect on the Historic Districts.” (PFR,
¶44). However, this averment is more akin to a conclusion of law or statement regarding the state
of mind of the NGDC employee who performed the relocation, both of which, without any further
supporting factual allegations, need not be accepted by the Court as true for purposes of ruling on
preliminary objections. See Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1021 n.7, 1025
(Pa. Cmwlth. 2014). Regardless, the material issue in the Municipalities’ claim under the ERA is
whether the PUC, as the regulatory body that created, adopted, and enforced 52 Pa. Code §59.18,
considered potential impacts to the historical values of the buildings in the Historic District. In this
facial constitutional challenge, the conduct of the NGDC, independent of the strictures of 52 Pa.
Code §59.18 and the NGDC’s relationship with the PUC, is irrelevant. See Maylie v. National
(Footnote continued on next page…)

                                                  17
of Reading, which involved an assessment of whether a local ordinance was
preempted by the amended version of 52 Pa. Code §59.18, this Court interpreted the
regulation and noted that it expressly “states that inside meter location ‘shall be
considered’ for buildings in historic districts, provided that the regulator and a shut-
off valve are installed outside.” 179 A.3d at 625 (citing 52 Pa. Code §59.18(d)(1)(ii),
(2), (3)). After determining that 52 Pa. Code §59.18 preempted a local ordinance,
either through the concept of conflict preemption or field preemption, we addressed
the City of Reading’s argument “that preemption [did] not apply because the location
of meters in historic districts implicates its protection of historic resources under
Article I, Section 27 of the Pennsylvania Constitution.” City of Reading, 179 A.3d at
631.
              In rejecting the City’s contention, this Court stated as follows:

              Article [I], Section 27 can bar preemption of local
              regulation where the state statute or regulation on which
              preemption is based so completely removes environmental
              protections that it violates the state’s duties under that
              constitutional provision. The reason that preemption fails
              in such a case is that the preempting state law itself is
              unconstitutional. That situation is not present here. The
              City does not claim that PUC Regulation 59.18 [52 Pa.
              Code §59.18] violates Article [I], Section 27 or is
              unconstitutional in any respect. Nor is there any basis on
              which a court could conclude that the PUC’s safety
              regulation of gas meters violates Article [I], Section 27 of
              the Pennsylvania Constitution, as it in fact takes into

(continued…)

Railroad Passenger Corp., 601 A.2d 308, 313 (Pa. Super. 1991) (concluding that “state action” is
generally required for a cause of action arising under the Pennsylvania Constitution); Western
Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance. Co., 485
A.2d 1, 5-6 (Pa. Super. 1984) (finding that to state a claim for a constitutional violation, the
complainant must allege sufficient “state action”).



                                              18
             account the interest in protection of historic resources by
             providing for consideration of indoor meter placement in
             historic districts. 52 Pa. Code §59.18(d)(ii).
City of Reading, 179 A.3d at 631-32 (internal citation omitted) (emphasis added).
             Although the Municipalities argue that the above passage from City of
Reading is non-binding dicta, and even assuming they are correct in this regard, we
nonetheless “find that it is persuasive dicta in light of the language of [52 Pa. Code
§59.18].” Swink v. Workmen’s Compensation Appeal Board (Burrell Construction &
Supply Co.), 510 A.2d 860, 863 (Pa. Cmwlth. 1986). In our view, the panel in City of
Reading engaged in a straightforward reading and construction of the pertinent
provisions of 52 Pa. Code §59.18, which reflect that the PUC did, in fact, “consider”
and, also, compelled an NGDC to “consider” (“shall consider”), whether a building
was or is located in a historic district in determining whether a meter should or could
stay in the inside part of the building.
             Moreover, in the Final Rulemaking Order, (44 Pa.B. 5835, Sept. 13,
2014), the PUC discussed the numerous arguments advanced by a variety of
historical commissions with respect to historical buildings. Id. at 5-6. The PUC
noted that “[t]he recommendation has been made that the regulations should develop
requirements for relocating meters and regulators outside in locally designated
historic districts and provide alternatives for typical historic building types.” Id. at
17. The PUC addressed these concerns by referring to the bases for permitting a
meter line to be located inside a structure, e.g., when protection from ambient
temperatures is necessary to avoid meter freeze-ups; a utility determines that a meter
is subject to a high risk of vandalism based on the utility’s prior experience; a utility
determines that an outside meter location is neither feasible nor practical; and when a
building is located in a historic district. Id. at 17. The PUC then stated that, based on
these provisions, 52 Pa. Code §59.18 does contain “guidelines for relocating meters

                                           19
outside which would apply to outside meters in locally designated historic districts.”
Id.; see id. at 3 (“Allowance for inside meter and regulator sets are based upon
historic area prohibitions . . . .”).12 By noting that a building’s historical significance
is one of the several exceptions to the requirement that meters be placed outside of a
building, the PUC “considered” the impact that 52 Pa. Code §59.18 may have on the
Commonwealth’s historic resources.
               Under the ERA, “when [the PUC] acts, the action must, on balance,
reasonably account for the [historical] features of the affected locale.” Robinson
Township, 83 A.3d at 951. Here, the Municipalities have not averred any adverse,
visual effects to a historic resource when a meter is relocated outside, and the PUC
ostensibly left it to the discretion of the NGDC to contemplate “visual impact
alternatives that may avoid or minimize the impact of installing the meter and/or
regulator outside.” Final Rulemaking Order, at 17. Our Supreme Court has been
careful to note that the rights conferred by the ERA are “amenable to regulation” and
that only regulations that “unreasonably impair the right[s] are unconstitutional.”

       12
           Nonetheless, the PUC “decline[d] to address visual impact alternatives that may avoid or
minimize the impact of installing the meter and/or regulator outside” and decided to “not attempt to
set what may be subjective requirements that would avoid or minimize the impact to an historic
resource.” Final Rulemaking Order, at 17. Instead, the PUC stated that it was expecting and relying
upon “a gas utility or any utility to provide reasonable and adequate service when installing its
equipment” and stressed that, under the amended regulation, “property owners, as well as utility
customers, [will] be notified of neighborhood projects,” including meter line relocation. Id.
Importantly, 52 Pa. Code §59.18(a)(3) provides: “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
Commission’s Bureau of Consumer Services.” Id. Apparently, this notice leaves open the
possibility that an NGDC and/or the Bureau of Consumer Services and the owner of a historic
building will work together or exchange dialogue in determining whether the meter line should be
relocated outside and, if so, at which particular place, based upon subjective and intangible factors
related to the aesthetic value of the building.



                                                 20
PEDF, 161 A.3d at 931. At the same time, the duties to conserve and maintain
natural resources under the ERA “do not require a freeze of the existing public
natural resource stock” and “are tempered by legitimate state interests.” Robinson
Township, 83 A.3d at 958.
            Here, the underlying reasons for the 2014 amendment to 52 Pa. Code
§59.18(a), as stated by the PUC, are as follows:

            The [PUC] is [] concerned about the number of reportable
            incidents resulting, at least partially, from locating meters
            and regulators inside structures. The gas distribution
            utilities reported more than 4,000 leaks occurring on inside
            meter sets over a five[-]year period. The number of
            reportable incidents (65) over the past forty years, however,
            is more alarming. While it appears from the data that the
            inside meter and regulators were not always the primary
            factor for accidents, locating meters and regulators inside
            certainly contributed to these incidents through a release of
            natural gas. State and federal gas safety regulations require
            gas utilities to perform leak surveys over service lines
            periodically; however, several of the utilities reported that
            they could not comply with the leak survey requirements
            when the meter and regulator are inside a building which
            prevents access. This is troubling because the state and
            federal regulations require leak surveys up to the meter. By
            not having access to the meter sets, the NGDCs cannot
            comply with the state and federal regulations and cannot
            detect inside leaks.

            The state has experienced several gas explosions related to
            steel service lines being struck and pulled up from their
            stable position and subsequently pulling the service line
            from the inside meter set. Plastic service lines with inside
            meter sets do not pull away since the excavation equipment
            usually severs the line immediately after being struck. The
            combination of steel service line and inside meter set is a
            high risk factor for natural gas incidents.




                                          21
Final Rulemaking Order, at 3.13 It is beyond cavil that public safety is a weighty,
legitimate state interest. See Robinson Township, 83 A.3d at 946; Pennsylvania
Department of Transportation v. Clayton, 684 A.2d 1060, 1063 (Pa. Cmwlth. 1996);
cf. Commonwealth v. Bell, 516 A.2d 1172 (Pa. 1986).
               After reviewing the relevant factors and mode of analysis for an ERA
claim, we conclude that the PUC engaged in measures that reasonably accounted for
the historical features of buildings located in Historic Districts. Indeed, the mere fact
that a structure has been designated under the Act as being a historical resource
automatically and unconditionally mandates that the NGDC consider keeping the
meter line inside. This aspect of 52 Pa. Code §59.18, in conjunction with the lack of
any averments to demonstrate visual or otherwise negative impacts to historic
resources when meters are installed outside, leads us to conclude that the
Municipalities have failed to state a valid claim that 52 Pa. Code §59.18, on its face,
violates the ERA.
               In sum, to prevail on a facial challenge to a regulation, the petitioner
must convince a court that the “constitutional deficiency is so evident that proof of
actual unconstitutional applications is unnecessary.” Clifton, 969 A.2d at 1223 n.37.
“A [law] is facially unconstitutional only where no set of circumstances exist under
which the [law] would be valid.”              Id. at 1222.      As explained previously, the
Municipalities are requesting this Court to engage in imaginative speculation as to the
aesthetic or visual harm posed by relocation of the meter, and by no means is it a sure
(or even likely) thing that a vast majority of meter relocations will bring about this

       13
          We do not reproduce and cite this passage from the Final Rulemaking Order to prove the
factual content and details therein, but simply to show the PUC’s overall, stated intent for revising
52 Pa. Code §59.18 and formulating the general rule that, unless an exception applies, meters shall
be located outside and aboveground.



                                                 22
harm. See Key Realty Co. Zoning Case, 182 A.2d 187, 195 n.6 (Pa. 1962) (“It is
difficult to imagine a more variable, uncertain fluctuating standard than ‘aesthetic’
value. In many instances, scarcely a dozen people can agree on what is or is not
aesthetic—it depends entirely on each individual’s artistic tastes or personal
predilections, and even these views, like the views on modernistic paintings, have
only ‘a fleeting moment’s duration.’”). To the contrary, it is quite fathomable that
there may be instances where the relocation does not have any discernable, adverse
impact to the building, such as, for example, where the meter is located in an area that
the public is unable to readily view. But, insofar as the Court can imagine that such
harm can or could occur, it is just as likely that it would not. Critically, where the
averred facts equally support two or even more inferences, the facts prove neither or
none of those inferences. See Commonwealth v. Borrin, 12 A.3d 466, 475 (Pa. Super.
2011) (en banc), aff’d, 80 A.3d 1219 (Pa. 2013).
              Therefore, we grant the PUC’s first PO and, in doing so, dismiss Count I
with prejudice.14


                        The PUC’s Remaining PO’s—Nos. 2-6
              Having dismissed Count I with prejudice, we now evaluate the PUC’s
remaining POs to determine whether Count II should be dismissed.


                                          PO No. 2
              In its second PO, the PUC contends that the Municipalities have failed to
exhaust administrative remedies.

       14
         Our conclusion, of course, does not bar the Municipalities from seeking to amend their
PFR to assert an as-applied challenge to 52 Pa. Code §59.18.



                                              23
             “It is well settled that when an adequate administrative remedy exists,
this Court lacks jurisdiction to entertain a suit in either law or equity. The doctrine of
exhaustion of administrative remedies requires a party to exhaust all adequate and
available administrative remedies before the right of judicial review arises.”
Pennsylvania Independent Oil and Gas Association v. Department of Environmental
Protection, 135 A.3d 1118, 1129 (Pa. Cmwlth. 2015) (en banc) (PIOGA) (internal
citations omitted), aff’d, 161 A.3d 949 (Pa. 2017).
             The PUC contends that the Municipalities did not “plead facts
demonstrating that they have applied for the indoor gas meter exception with their
respective NGDCs pursuant to 52 Pa. Code §59.18(d).” (PUC’s Br. at 16.) The PUC
continues,

             Accordingly, it is not apparent that the regulation they seek
             to enjoin the Commission from enforcing has been enforced
             against them. Only after the Municipalities make such an
             application to the NGDC can the NGDC approve or deny
             the indoor gas meter application. Upon such a denial, the
             Municipalities can seek Commission review under Section
             701 of the Pennsylvania Public Utility Code, 66 Pa.C.S.
             §701, of the NGDC’s determination.

(PUC’s Br. at 16.)
             The PUC further asserts that, “if the Municipalities are dissatisfied with
a [PUC] staff determination made under Section 59.18, they may file a Petition for
Review of staff action pursuant to 52 Pa. Code §5.44.” Id.
             We disagree. First, as correctly noted by the Municipalities in their
brief, 52 Pa. Code §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.”



                                           24
(Municipalities’ Br. at 24.) Although, as mentioned above in footnote 12, see infra
note 12, 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, 52 Pa. Code
§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 52 Pa. Code §59.18. Further, in light of the plain language of 52
Pa. Code §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.
In short, the Municipalities cannot exhaust an administrative procedure that is
seemingly nonexistent.
             Second, 52 Pa. Code §5.44 states in pertinent part,

             (a) Actions taken by staff, other than a presiding officer,
             under authority delegated by the Commission, will be
             deemed to be the final action of the Commission unless
             reconsideration is sought from the Commission within 20
             days after service of notice of the action, unless a different
             time period is specified in this chapter or in the act.

             (b) An action taken by staff under delegated authority will
             note the parties’ right to seek reconsideration of the action
             under this section.

             (c) Petitions for reconsideration from the actions of the
             staff will be addressed by the Commission at public
             meeting.

52 Pa. Code §5.44(a)-(c).
             However, assuming, for the sake of the argument, that an NGDC is part
of the PUC’s “staff,” there is nothing in 52 Pa. Code §59.18 that requires an NGDC
to inform the Municipalities of a right to contest the action, via reconsideration, and,
at this stage in the proceedings, the pleadings are devoid of any allegation that the


                                          25
NGDC provided notice to the Municipalities that they have a right to seek
reconsideration under 52 Pa. Code §5.44. Notably, the Municipalities have averred
that under 52 Pa. Code §59.18, the PUC vested absolute, unfettered, and
unreviewable discretion in an NGDC when deciding whether to perform a meter
relocation. (PFR, ¶¶23, 55.) Moreover, the Final Rulemaking Order states that “the
utility will continue to retain discretion in applying this regulation,” id. at 1, admits
that “the regulation does contain provisions that delegate discretion to the utility in
making a determination with respect to locating an outside meter,” id. at 26, and
confirms that “due to [a utility’s] public safety obligations,” “it is necessary that . . .
the utility be allowed to make the final decision.” Id.; cf. 1 Pa. Code §35.20 (Appeals
from actions of staff) (“Actions taken by a subordinate officer under authority
delegated by the agency head may be appealed to the agency head by filing a petition
within 10 days after service of notice of the action.”). As such, accepting the well-
pled facts as true, as we are required to do, the PUC’s proposed administrative
procedure is neither available nor adequate.
             Third, the Municipalities have lodged a facial challenge in Count II
under the Declaratory Judgments Act.        In PIOGA, this Court noted that “there are
several exceptions to th[e] doctrine that, if applicable, would allow a petitioner to file
a [petition for review] in this Court’s original jurisdiction under the Declaratory
Judgments Act.” 135 A.3d at 1129.

             Three relevant exceptions to the exhaustion of
             administrative remedies are recognized for constitutional
             attacks. The first exception is where the jurisdiction of an
             agency is challenged. The second exception is where the
             constitutionality of a statutory scheme or its validity is
             challenged. The third exception is where the legal or
             equitable remedies are unavailable or inadequate, or the
             administrative agency is unable to provide the requested


                                            26
             relief.    Under the third exception, even though an
             administrative agency may not have jurisdiction over all
             constitutional issues raised by a litigant, the litigant must
             first exhaust its administrative remedies where there is no
             separate allegation that the available statutory remedy is
             inadequate.
Empire Sanitary Landfill, Inc. v. Department of Environmental Resources, 684 A.2d
1047, 1054-55 (Pa. 1996).
             Here, although the PUC “has some authority in certain cases to consider
constitutional questions concerning regulations within its jurisdiction, [i]t does not . .
. have the power to grant declaratory judgment and injunctive relief pursuant to the
Declaratory Judgment[s] Act . . . because only courts of record of the Commonwealth
have that jurisdiction.” PIOGA, 135 A.3d at 1129. Having sufficiently alleged that
the procedures documented by the PUC are neither available nor adequate, the
Municipalities do not have to exhaust an administrative process prior to commencing
their facial challenge in our original jurisdiction. See id. at 1129-30; see also Empire
Sanitary Landfill, 684 A.2d at 1055. Otherwise, there is an exception to the doctrine
of exhaustion of administrative remedies, where, as here, the petitioner has lodged a
facial challenge “to the constitutionality of the [] regulation as a whole.” Funk v.
Department of Environmental Protection, 71 A.3d 1097, 1102 (Pa. Cmwlth. 2013)
(internal citation and quotation marks omitted).
             Accordingly, based on these legal precepts, we overrule the PUC’s
second PO.


                                       PO No. 3
             In its third PO, the PUC asserts that the Municipalities failed to join the
NGDCs, which allegedly relocated the meter lines in the Historic Districts, as a
necessary and/or indispensable party. The PUC argues that the NGDCs must comply


                                           27
with federal regulations and, if the NGDCs are not joined in this suit, they would be
prejudiced and subjected to conflicting obligations, and their “interest in complying
with other statutory and regulatory mandates would be neglected.” (PUC’s Br. at 19.)
More precisely, the PUC contends that

            [g]as meter location is an essential part to the safe and
            reliable operation of gas service, and excluding NGDCs
            from this proceeding would prejudice the affected NGDCs
            from being able to argue their case with respect to the
            requirements under Federal pipeline safety and the Public
            Utility Code . . . . [T]he due process rights of the affected
            NGDCs would be violated if this matter proceeded without
            them because taking away the NGDCs’ ability to review
            gas meter location could cause the NGDCs to violate other
            statutes and regulations as previously discussed.
Id.
            A party is indispensable when its “rights are so connected with the
claims of the litigants that no decree can be made without impairing those rights.”
Rachel Carson Trails Conservancy, Inc. v. Department of Conservation and Natural
Resources, 201 A.3d 273, 279 (Pa. Cmwlth. 2018). “Thus, the main inquiry for
determining whether a party is indispensable involves whether justice can be
accomplished in the absence of the party.” Id.
            We consider the following guidelines in determining whether a party is
indispensable:

            (1) Do absent parties have a right or interest related to the
            claim?

            (2) If so, what is the nature of the right or interest?

            (3) Is that right or interest essential to the merits of the
            issue?




                                           28
               (4) Can justice be afforded without violating due process
               rights of the absent parties?
CRY, Inc. v. Mill Service, Inc., 640 A.2d 372, 376 (Pa. 1994). The basic inquiry in an
indispensable analysis is whether justice can be done in the absence of a third party.
To conduct an accurate analysis, this Court must “refer to the nature of the claim and
the relief sought.” Id. at 376.
               In Hommrich v. Pennsylvania Public Utilities Commission (Pa. Cmwlth.,
No. 674 M.D. 2016, filed July 28, 2017) (unreported),15 the petitioner filed a petition
for review in our original jurisdiction against the PUC seeking relief under the
Declaratory Judgments Act.          He contended that certain regulations of the PUC
pertaining to net metering were unauthorized under the Alternative Energy Portfolio
Standards Act (AEPS Act).16           The petitioner planned on and took steps toward
building solar facilities, and the project was within the service territory of
Pennsylvania’s electric distribution companies (EDCs). The petitioner alleged that
his facilities would generate excess energy, which, in turn, would be sold to an EDC.
The PUC filed POs, asserting, inter alia, that the petitioner failed to join the EDC as
an indispensable party because the EDC provides net metering as a service and
purchases excess energy at a retail rate.
               In overruling the PO, this Court concluded:

               Here, according to the PUC, the identity and joinder of the
               EDC is necessary because the challenged regulations would
               not apply to customers served by rural electric cooperatives
               and municipal electric systems. However, the PUC’s
               assertion fails to accept as true [the petitioner’s] well-pled
               allegation that the proposed projects “are within the service
      15
          We cite Hommrich for its persuasive value in accordance with Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).
      16
           Act of November 30, 2004, P.L. 1672, as amended, 73 P.S. §§1648.1-1648.8.



                                               29
             territory of Pennsylvania EDCs.” [The petitioner] also
             alleges that he “does not seek to build his facilities in any
             service territory where net metering is not available
             pursuant to the AEPS Act.” [The petitioner] seeks a
             declaration regarding the validity of the PUC’s regulations.
             His challenge is a question of law that is not dependent on
             the location of his planned projects in a particular EDC
             service territory or the identity of the EDC to which [the
             petitioner’s] alternative energy systems would interconnect
             and to which he would sell his excess energy. Although an
             EDC is the entity responsible for approving or denying an
             application for net metering depending if the applicant
             qualifies under the law, the EDCs do not have a right or
             interest regarding the validity of the regulations . . . . The
             EDCs merely apply the law in effect when ruling on the
             applications. Thus, we conclude that the EDC is not an
             indispensable party to this litigation and overrule this
             objection.
Hommrich, slip op. at 17-18 (internal citations omitted).
             In our view, the parallels between Hommrich and this case are
compelling. Akin to the situation in Hommrich, where the petitioner challenged the
PUC’s regulations and the EDC implemented those regulations, here, the
Municipalities are contesting the constitutionality of 52 Pa. Code §59.18, and the
NGDCs execute, or put into operation, the regulation. Also, both the NGDCs and the
EDCs are charged with “merely applying the law in effect” when deciding meter
location and processing an application, and neither one has or had “a right or interest
regarding the validity of the regulations.” Hommrich, slip op. at 18. Notably, the
Municipalities seek an order declaring 52 Pa. Code §59.18 unconstitutional and are
not pursuing relief against the NGDCs themselves.           To the extent that the PUC
contends the NGDCs are indispensable parties because they would not be able to
argue their case with respect to the requirements under federal law, this issue is
irrelevant to Count II and has no bearing on whether 52 Pa. Code §59.18 constitutes
an unlawful sub-delegation of legislative authority.

                                          30
               Hence, we overrule the PUC’s third PO.


                                       PO Nos. 4 and 617
               In its fourth PO, the PUC contends that the Municipalities have failed to
aver facts demonstrating direct and immediate harm and the existence of an actual
controversy. In its sixth PO, the PUC reiterates, in substance, the same allegations,
but adds that, because there is no actual controversy, Count II seeks an advisory
opinion.
               We dispose of these contentions summarily. “[I]n order for a challenge
to be justiciable in this Court, there must be a promulgation of regulations the effect
of which is direct and immediate.”            Zinc Corp. of America v. Department of
Environmental Resources, 603 A.2d 288, 290 (Pa. Cmwlth. 1992). “Only where
there is a real controversy may a party obtain a declaratory judgment.” South Butler
County School District, 587 A.2d 699, 701 (Pa. 1991); see also Office of Governor v.
Donahue, 98 A.3d 1223, 1230-31 (Pa. 2014).
               In the PFR, the Municipalities allege the NGDCs serving their areas
have commenced a meter relocation program pursuant to the amended version of 52
Pa. Code §59.18 and relocated meters from the interior of buildings to the exterior of
buildings in their Historic Districts. (PFR, ¶¶21-22.) In Count II, the Municipalities
assert that the NGDC lacks the legal power to take such action because 52 Pa. Code
§59.18 constitutes an unlawful sub-delegation of legislative authority.
               Ergo, as alleged by the Municipalities, 52 Pa. Code §59.18 was and is in
effect and has been implemented by both the PUC and NGDCs. The Municipalities
further allege that an NGDC has already relocated meters in the Historic Districts,

      17
           We will address PO No. 5 infra.



                                              31
resulting in a change in the status quo and discernable modifications to historical
buildings, which was done pursuant to an allegedly unconstitutional scheme.
Ultimately, these averments demonstrate an actual controversy, immediate harm, and
do not require this Court to issue an advisory opinion, i.e., an opinion based on
hypothetical facts that do not or may not ever occur. See Crystal Lake Camps v.
Alford, 923 A.2d 482, 489 (Pa. Super. 2007).
              For these reasons, the Court overrules the PUC’s fourth and sixth POs.


                                       PO No. 5
              Finally, the PUC contends that the Municipalities have failed to aver
facts sufficient to justify pre-enforcement review. To the contrary, 52 Pa. Code
§59.18 has been applied and enforced against the Municipalities and, as previously
explained, the alleged post-enforcement procedure of the PUC is neither available nor
adequate. In any event, “this Court has jurisdiction to conduct pre-enforcement
review of a regulation if the administrative remedy is either unavailable or inadequate
and the effect of the regulation on the party seeking review is direct and immediate.”
Rouse & Associates-Ship Road Land Limited Partnership v. Pennsylvania
Environmental Quality Board, 642 A.2d 642, 647 (Pa. Cmwlth. 1994). Having
already determined that the Municipalities need not exhaust administrative remedies
to move forward on Count II, and that they have already been subjected to and
experienced harm as a result of 52 Pa. Code §59.18 (albeit not in the ERA sense, but
in the sense that a “fixture” has been attached to the building), the PUC’s arguments
lack merit.
              Therefore, the Court overrules the PUC’s fifth PO.




                                          32
                                   Conclusion
            Having concluded that the Municipalities have failed to state a claim
upon which relief can be granted, we sustain the PUC’s first PO and dismiss Count I
of the PFR with prejudice. Because we have determined that the PUC’s five other
POs lack merit, and do not necessitate the dismissal of Count II, the Court permits
Court II to proceed, and the PUC shall file an answer within 30 days of the
accompanying order.


                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge




                                        33
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Lancaster, Borough of Carlisle, :
and Borough of Columbia,                :
                   Petitioners          :
                                        :    No. 251 M.D. 2019
            v.                          :
                                        :
Pennsylvania Public Utility             :
Commission ,                            :
                   Respondent           :



                                     ORDER


            AND NOW, this 21st day of February, 2020, the preliminary
objections of the Pennsylvania Public Utility Commission (PUC) to the petition for
review (PFR) filed by the City of Lancaster, Borough of Carlisle, and Borough of
Columbia are GRANTED in part and OVERRULED in part, and Count I of the
PFR is hereby DISMISSED with PREJUDICE. The PUC is directed to file an
answer to the PFR within 30 days of the date of this order.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
