        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Public Utility            :
Commission,                            :
                         Petitioner    :
                                       :
             v.                        :    No. 491 M.D. 2018
                                       :    Argued: June 6, 2019
Delaware Valley Regional Economic      :
Development Fund, John Coffman,        :
Lauri A. Kavulich, Thomas Jay Ellis,   :
Gaetano Piccirilli, Albert Mezzaroba, :
Anthony DiSandro, Roseanne Pauciello, :
Jonathan Ireland, William Martin,      :
Thomas Muldoon (in their official      :
capacity),                             :
                           Respondents :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                        FILED: June 27, 2019


                             I. INTRODUCTION
            Presently before this Court for disposition are the amended preliminary
objections filed by Respondents Delaware Valley Regional Economic Development
Fund (Fund), John Coffman, Lauri A. Kavulich, Thomas Jay Ellis, Gaetano
Piccirilli, Albert Mezzaroba, Anthony DiSandro, Roseanne Pauciello, Jonathan
Ireland, William Martin, and Thomas Muldoon (Fund’s Officers/Directors)
(collectively, Respondents) to a complaint filed by Petitioner Pennsylvania Public
Utility Commission (PUC) in this Court’s original jurisdiction (Complaint),1 and the
PUC’s preliminary objection to Respondents’ amended preliminary objections. For
the reasons set forth below, we overrule, in part, sustain, in part, strike, in part, and
dismiss as moot, in part, Respondents’ amended preliminary objections, sustain, in
part, and dismiss as moot, in part, the PUC’s preliminary objection to Respondents’
amended preliminary objections, and dismiss Count I of the PUC’s Complaint.
                                    II. BACKGROUND
               In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the complaint and any reasonable inferences that we may
draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994).
The Court, however, is not bound by legal conclusions, unwarranted inferences from
facts, argumentative allegations, or expressions of opinion encompassed in the
complaint. Id. We may sustain preliminary objections only when the law makes
clear that the petitioner cannot succeed on the claim, and we must resolve any doubt
in favor of the petitioner. Id. “We review preliminary objections in the nature of a
demurrer under the above guidelines and may sustain a demurrer only when a
petitioner has failed to state a claim for which relief may be granted.” Armstrong
Cty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).

       1
           By memorandum and order dated September 5, 2018, this Court concluded that,
notwithstanding its title, the PUC’s initiating document entitled “Complaint and Petition to
Enforce an Order of the Pennsylvania Public Utility Commission Pursuant to Pa. R.A.P. 3761”
constituted a complaint in this Court’s original jurisdiction, and, therefore, this Court would not
treat the matter as a petition to enforce pursuant to Pa. R.A.P. 3761. Although we previously
characterized the PUC’s initiating document as a complaint and will refer to it as such throughout
this opinion, because the PUC is not the Commonwealth of Pennsylvania, the PUC’s initiating
document should have been designated as a petition for review filed in this Court’s original
jurisdiction. As such, Chapter 15 of the Pennsylvania Rules of Appellate Procedure and not the
Pennsylvania Rules of Civil Procedure will apply to this action.

                                                2
                With the above standard in mind, we accept as true the following
allegations of the Complaint.          The Fund is a nonprofit corporation that was
incorporated on December 20, 1994, for the stated purpose of, inter alia, organizing
a group of citizens to promote the betterment, economic development, and national
and international tourism and relations of the City of Philadelphia, the region
commonly referred to as the “Delaware Valley,” the Commonwealth of
Pennsylvania, and the State of New Jersey. (Compl. ¶ 18.) In 1998, the Fund
received approximately $21 million in funding from PECO Energy Company
(PECO) ratepayers pursuant to a settlement order (1998 PECO Restructuring
Settlement Order) entered by the PUC in connection with the Electricity Generation
Customer Choice and Competition Act2 and PECO’s associated comprehensive
Restructuring Plan. (Compl. ¶¶ 19, 21, 23-24, 28.) The 1998 PECO Restructuring
Settlement Order required the Fund to use the funding for the issuance of loans and
grants for economic development projects that have a job impact in PECO’s service
territory. (Compl. ¶¶ 19, 29.) In connection with the Fund’s receipt of the funding,
the PUC directed the Fund to file semi-annual reports, which detailed the Fund’s
activities and provided applicable statements of account, with the PUC’s Bureau of
Audits, so that the PUC and the public could monitor the Fund’s activities to ensure
that the funds were being used prudently and for the purpose for which the funds
were intended.3 (Compl. ¶¶ 30-32.)




       2
           66 Pa. C.S. §§ 2801-2815.
       3
         The PUC initially required the Fund to file semi-annual reports for two fiscal years,
beginning July 1, 1999, but thereafter extended the Fund’s semi-annual reporting requirements
until such time that the PUC approved any new transmission and distribution rates for PECO.
(Compl. ¶¶ 30, 33-35.)

                                              3
             On May 21, 2010, as a result of the PUC’s concerns regarding the
Fund’s lack of activity in issuing loans and grants as required by the 1998 PECO
Restructuring Settlement Order and in an attempt to refocus the Fund on its
obligations under the 1998 PECO Restructuring Settlement Order, the PUC and the
Fund entered into an Agreement (2010 Settlement Agreement), whereby the Fund
agreed to, inter alia: (1) submit quarterly reports with statements of accounts to the
PUC’s Bureau of Audits; (2) adhere to the loan and grant guidelines adopted by the
Fund; (3) maximize the use of the PECO ratepayers’ funds for the purpose set forth
in the 1998 PECO Restructuring Settlement Order; and (4) provide the PUC with
quarterly documentation of the grants and loans that the Fund awarded.
(Compl. ¶¶ 36, 55, 59 and App. B.) As consideration, the PUC agreed to not initiate
an action against the Fund for a violation of the 1998 PECO Restructuring
Settlement Order and to provide the Fund with reasonable notice and an opportunity
to cure any breach of the 2010 Settlement Agreement. (Compl. ¶ 58 and App. B.)
The PUC also acknowledged that, as of the date of the 2010 Settlement Agreement,
the Fund had complied with the terms and conditions of the 1998 PECO
Restructuring Settlement Order. (Compl. ¶ 58 and App. B.)
             Based on information provided to the PUC, however, it appears to the
PUC that the Fund’s “loan and grant activity has steadily diminished and is presently
moribund, while its portfolio has grown to 92% of its net assets” and that the Fund’s
“loans to assets ratio has decreased dramatically and has remained at an unacceptable
low level.” (Compl. ¶¶ 38-39, 77-78.) In addition, the PUC believes that the Fund
does not have an “outreach program to identify and select credible economic
projects” or a “marketing program to advertise its economic development purpose,”
has failed to update its website, and is unknown in the Philadelphia community.


                                          4
(Compl. ¶¶ 40-42.) The Fund has also stopped providing the PUC with information
regarding its operations, and, therefore, the PUC is unable to determine whether the
Fund is in compliance with the 1998 PECO Restructuring Settlement Order.
(Compl. ¶ 43.) In other words, the PUC believes that the Fund has failed to use the
PECO ratepayers’ funds prudently or for the purpose intended by the 1998 PECO
Restructuring Settlement Order. (Compl. ¶ 45.)
             On July 16, 2018, the PUC filed its Complaint, setting forth causes of
action against Respondents for breach of fiduciary duty and breach of contract. In
its breach of fiduciary duty claim (Count I), the PUC alleges that the Fund’s
Officers/Directors breached the duties of care and loyalty that they owed to the Fund
because the Fund has failed to adhere to its legal obligations under the 1998 PECO
Restructuring Settlement Order and the 2010 Settlement Agreement to maximize the
use of the PECO ratepayers’ funds for the issuance of loans and grants for economic
development projects that have a job impact in PECO’s service territory. In its
breach of contract claim (Count II), the PUC alleges that the Fund breached the
1998 PECO Restructuring Settlement Order and the 2010 Settlement Agreement by:
(1) altogether ceasing to provide grants for economic development projects that have
a job impact in PECO’s service territory; (2) providing very few, if any, loans for
economic development projects that have a job impact in PECO’s service territory;
(3) failing to provide the PUC with the documentation necessary for the PUC to
determine whether the Fund has been utilizing the PECO ratepayers’ funds for
economic development projects that have a job impact in PECO’s service territory;
and (4) focusing its loans and grants on projects that have questionable economic
benefit.




                                         5
              In response to the PUC’s Complaint, Respondents filed six amended
preliminary objections.4 First, Respondents aver that the PUC’s breach of fiduciary
duty claim is barred by the “gist of the action” doctrine. Second, Respondents aver
that the PUC has failed to state a claim for breach of contract because the PUC’s
Complaint demonstrates that the Fund did not breach the 2010 Settlement
Agreement. Third, Respondents aver that, even if the PUC’s claim for breach of
fiduciary duty is not barred by the “gist of the action” doctrine, such claim is legally
insufficient because it is dependent upon and intertwined with the PUC’s breach of
contract claim, and, therefore, if the Fund did not breach the 2010 Settlement
Agreement, the Fund’s Officers/Directors could not have breached their fiduciary
duties. Fourth, Respondents aver that the PUC’s claim for breach of contract is
barred by the statute of limitations. Fifth, Respondents aver that the PUC’s claim
for breach of fiduciary duty is barred by the statute of limitations.                     Sixth,
Respondents aver that the PUC lacks standing to bring its breach of fiduciary duty
claim.
              In response to Respondents’ preliminary objections relative to the
statute of limitations, the PUC filed a preliminary objection, arguing that this Court
should strike such preliminary objections because they impermissibly raise the
statute of limitations as an affirmative defense.




         4
          Respondents filed their amended preliminary objections to reflect that all Respondents,
and not just the Fund, objected to the PUC’s Complaint and to correct the use of the word
“Commission” instead of “Court”; Respondents did not make any substantive changes to the text
of their preliminary objections. (See Respondents’ Am. Preliminary Objection’s at 1 n.1.) As
such, all references in this opinion to “preliminary objection(s)” or “amended preliminary
objection(s)” shall mean Respondents’ amended preliminary objections.

                                               6
                                      III. DISCUSSION
                        A. Count I – Breach of Fiduciary Duty
                            Demurrer – Gist of the Action
               While we would typically address the issue of standing first, for the
purpose of efficiency and because we dispose of the PUC’s breach of fiduciary duty
claim on these grounds, we will first address Respondents’ preliminary objection
that the PUC’s breach of fiduciary duty claim is barred by the “gist of the action”
doctrine. More specifically, Respondents argue that although Count I of the PUC’s
Complaint is labeled as a claim for breach of fiduciary duty, the substance of the
PUC’s claim sounds in contract and alleges nonfeasance, because the factual
averments are focused on the Fund’s failure to comply with the terms and conditions
of the 2010 Settlement Agreement. In response, the PUC argues that its breach of
fiduciary duty claim is not barred by the “gist of the action” doctrine because such
claim is based upon the Fund’s failure to fulfill its duties under the Nonprofit
Corporation Law of 19885 and the Uniform Trust Act,6 which are facts independent
of the 1998 PECO Restructuring Settlement Order and the 2010 Settlement
Agreement. The PUC further argues that it has distinguished its breach of fiduciary
duty claim from the 1998 PECO Restructuring Settlement Order and the
2010 Settlement Agreement by focusing such claim on the Fund’s duty to use the
PECO ratepayers’ funds for their intended purpose as required by the Fund’s bylaws
and a trust that was created by the 1998 PECO Restructuring Settlement Order to
oversee the PECO ratepayers’ funds.
               The “gist of the action” doctrine “precludes a party from raising tort
claims where the essence of the claim actually lies in a contract that governs the

      5
          15 Pa. C.S. §§ 5101-6162.


                                             7
parties’ relationship.” Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 718
(Pa. Super. 2005).7 The doctrine is “designed to maintain the conceptual distinction
between breach of contract claims and tort claims.” eToll, Inc. v. Elias/Savion
Advert., Inc., 811 A.2d 10, 14 (Pa. Super. 2002). Whereas actions in tort “lie from
the breach of duties imposed as a matter of social policy,” actions in contract “lie for
the breach of duties imposed by mutual consensus.” Id. (quoting Redevelopment
Auth. of Cambria Cty. v. Int’l Ins. Co., 685 A.2d 581, 590 (Pa. Super. 1996)
(en banc), appeal denied, 695 A.2d 787 (Pa. 1997)). “In other words, a claim should
be limited to a contract claim when the parties’ obligations are defined by the terms
of the contracts, and not by the larger social policies embodied by the law of torts.”
Id. (quoting Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 104
(3rd Cir. 2001), cert. denied, 534 U.S. 1162 (2002)).
                In determining whether an action sounds in contract or in tort, this Court
applies the “misfeasance/nonfeasance” test:8
                Under this test, we determine if there exists a cause of
                action in tort growing out of a breach of contract based on
                “whether there was an improper performance of a
                contractual obligation (misfeasance) rather than the mere
                failure to perform (nonfeasance).”



       6
           20 Pa. C.S. §§ 7701-7799.3.
       7
          Although not binding on this Court, Pennsylvania Superior Court decisions may be cited
for their persuasive value when they address analogous issues. Lerch v. Unemployment Comp. Bd.
of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
       8
         Though our approach differs somewhat from the Pennsylvania Superior Court’s four-part
analysis, which the Superior Court explained in Reardon v. Allegheny College, 926 A.2d 477
(Pa. Super. 2007), appeal denied, 947 A.2d 738 (Pa. 2008), both approaches “tend to achieve the
same results, as both require the court to analyze how much the claims in the pleadings relate to
the contracts involved.” Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 944
(Pa. Cmwlth. 2002), rev’d on other grounds, 854 A.2d 425 (Pa. 2004).

                                               8
                    . . . If there is “misfeasance,” there is an improper
             performance of the contract in the course of which the
             defendant breaches a duty imposed by law as a matter of
             social policy. In such instances, the “gist” of the plaintiff’s
             action sounds in tort and the contract itself is collateral to
             the cause of action. On the other hand, if there is
             “nonfeasance,” the wrong attributed to the defendant is
             solely a breach of the defendant’s duty to perform under
             the terms of the contract. In such instances, the “gist” of
             the plaintiff’s action sounds in contract, and the plaintiff
             would not have a cause of action but for the contract.
Yocca, 806 A.2d at 944 (emphasis added) (internal citation omitted) (quoting Grode
v. Mutual Fire, Marine, and Inland Ins. Co., 623 A.2d 933, 935
(Pa. Cmwlth. 1993)).
             Applying the misfeasance/nonfeasance test to this case, we must
conclude that the PUC’s breach of fiduciary duty claim is barred by the “gist of the
action” doctrine. The “gist” of the PUC’s action sounds in contract, not tort, as the
PUC’s breach of fiduciary duty claim is based on the same conduct that the PUC
alleges is a breach of the 1998 PECO Restructuring Settlement Order and the
2010 Settlement Agreement—i.e., the Fund’s failure to adhere to its legal
obligations under the 1998 PECO Restructuring Settlement Order and the
2010 Settlement Agreement to maximize the use of the PECO ratepayers’ funds for
the issuance of loans and grants for economic development projects that have a job
impact in PECO’s service territory. While the PUC suggests that the Fund’s
Officers/Directors violated the duties of care and loyalty that they owed to the Fund
independent of the 1998 PECO Restructuring Settlement Order and the
2010 Settlement Agreement, the duties in question arise only because of the
1998 PECO Restructuring Settlement Order and the 2010 Settlement Agreement. In
other words, the PUC merely alleges nonfeasance and not that the Fund’s
Officers/Directors violated any duty other than the Fund’s duty to perform under the

                                           9
1998 PECO Restructuring Settlement Order and the 2010 Settlement Agreement,
and, therefore, the PUC would not have a cause of action against the Fund’s
Officers/Directors but for the 1998 PECO Restructuring Settlement Order and the
2010 Settlement Agreement. For these reasons, we must sustain Respondents’
preliminary objection that the PUC’s breach of fiduciary duty claim is barred by the
“gist of the action” doctrine and dismiss Count I of the PUC’s Complaint.9
                      B. Count II – Breach of Contract
            Demurrer – No Breach of the 2010 Settlement Agreement
              Next, we will address Respondents’ preliminary objection that the PUC
has failed to state a claim for breach of contract because the PUC’s Complaint
demonstrates that the Fund did not breach the 2010 Settlement Agreement. More
specifically, Respondents argue that the PUC previously acknowledged that the
Fund’s performance complies with the 1998 PECO Restructuring Settlement Order
and the 2010 Settlement Agreement because:                 (1) the PUC admitted in the
2010 Settlement Agreement that the Fund had complied with the 1998 PECO
Restructuring Settlement Order and that its financial activity—i.e., loans receivable
to net assets—was acceptable; and (2) the PUC never objected to the Fund’s level
of financial activity in the years following the 2010 Settlement Agreement.
Respondents further argue that the Fund fully complied with the financial reporting
requirements set forth in the 2010 Settlement Agreement because the
2010 Settlement Agreement provided a termination date of December 31, 2012, for
all financial reporting requirements. Respondents contend that, even though the


       9
          Because we dispose of the PUC’s breach of fiduciary duty claim on these grounds, we
need not address the remainder of Respondents’ preliminary objections to Count I of the PUC’s
Complaint, or the PUC’s preliminary objection to Respondents’ preliminary objection relative to
the statute of limitations challenge to Count I of the PUC’s Complaint. We, therefore, dismiss
such preliminary objections as moot.

                                              10
PUC argues that the termination date only applied to quarterly reports with
supporting statements of accounts and not quarterly documentation of the loans and
grants that the Fund awarded, the PUC did not object to the Fund’s subsequent
failure to submit loan and grant information.
             In response, the PUC argues that its breach of contract claim is based
on not only the Fund’s failure to provide quarterly documentation of the loans and
grants that the Fund awarded, but also the Fund’s failure to maximize its use of the
PECO ratepayers’ funds as required by the 1998 PECO Restructuring Settlement
Order and the 2010 Settlement Agreement. The PUC argues further that, contrary
to Respondents’ allegations, it did not unconditionally admit that the Fund’s use of
the PECO ratepayers’ funds was in compliance with the 1998 PECO Restructuring
Settlement Order; rather, the PUC offered its acknowledgement as consideration for
the 2010 Settlement Agreement in an effort to avoid litigation at that time.
             The PUC has set forth sufficient facts in the Complaint to support its
claim that the Fund breached the 1998 PECO Restructuring Settlement Order and/or
the 2010 Settlement Agreement, which, if proven, could result in a ruling from this
Court in favor of the PUC and against the Fund. In support of their argument that
the PUC acknowledged that the Fund’s performance complies with the 1998 PECO
Restructuring Settlement Order and the 2010 Settlement Agreement and that the
PUC did not object to the Fund’s failure to provide loan and grant information after
December 31, 2012, Respondents ask this Court to consider at least some facts that
do not appear within the PUC’s Complaint. In addition, the parties raise a legal
question regarding whether the 2010 Settlement Agreement required the Fund to
provide the PUC with quarterly documentation of the loans and grants that the Fund
awarded beyond December 31, 2012. As a result, we cannot say at this preliminary


                                         11
stage of the proceedings that the PUC has failed to state a claim for breach of contract
against the Fund, and, therefore, we must overrule Respondents’ preliminary
objection.
                         C. Count II – Breach of Contract
                              Statute of Limitations
             Lastly, we will address Respondents’ preliminary objection that the
PUC’s claim for breach of contract is barred by the statute of limitations and the
PUC’s preliminary objection that Respondents’ preliminary objection impermissibly
raises the statute of limitations as a defense to the PUC’s breach of contract claim.
In their amended preliminary objections, Respondents set forth a detailed
explanation of why they believe that the PUC’s breach of contract claim is untimely
and, therefore, barred by the statute of limitations.       In their supporting brief,
however, Respondents concede that, under existing case law, their statute of
limitations challenge is premature. Respondents nevertheless suggest that, because
their argument “is based solely on the Complaint and exhibits thereto, . . . it would
serve the interests of judicial economy to have an early resolution of this potentially
dispositive question.” (Respondents’ Br. at 22.) In response, the PUC argues that,
in light of the fact that Respondents have conceded that their preliminary objection
is not viable under existing case law, there is no reason for the Court to expend its
resources on this issue. The PUC further argues that Respondents’ preliminary
objection impermissibly raises the statute of limitations as an affirmative defense to
the PUC’s breach of contract claim, because all affirmative defenses, including the
statute of limitations, can only be raised by answer with new matter.
             Pursuant to Pennsylvania Rule of Civil Procedure No. 1030(a), all
affirmative defenses, including the statute of limitations, must be pled in a
responsive pleading as “new matter” and should not be raised during the preliminary

                                          12
objections stage of the proceedings. The statute of limitations may, however, be
raised as a preliminary objection and considered by the court only if “the defense is
clear on the face of the pleadings and the responding party does not file preliminary
objections to the preliminary objections.” Petsinger v. Dep’t of Labor & Indus.,
Office of Vocational Rehab., 988 A.2d 748, 758 (Pa. Cmwlth. 2010). Here, the PUC
filed a preliminary objection to Respondents’ preliminary objection that the PUC’s
claim for breach of contract is barred by the statute of limitations. Thus, we may not
consider the statute of limitations defense at this time. As a result, we must sustain
the PUC’s preliminary objection to Respondents’ preliminary objection and strike
Respondents’ preliminary objection that the PUC’s breach of contract claim is
barred by the statute of limitations.
                                IV. CONCLUSION
             For the reasons set forth above, we overrule, in part, sustain, in part,
strike, in part, and dismiss as moot, in part, Respondents’ amended preliminary
objections, and sustain, in part, and, dismiss as moot, in part, the PUC’s preliminary
objection to Respondents’ amended preliminary objections, dismiss Count I of the
PUC’s Complaint, and direct Respondents to file an answer to Count II of the PUC’s
Complaint.




                                          P. KEVIN BROBSON, Judge




                                         13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Public Utility            :
Commission,                            :
                         Petitioner    :
                                       :
             v.                        :   No. 491 M.D. 2018
                                       :
Delaware Valley Regional Economic      :
Development Fund, John Coffman,        :
Lauri A. Kavulich, Thomas Jay Ellis,   :
Gaetano Piccirilli, Albert Mezzaroba, :
Anthony DiSandro, Roseanne Pauciello, :
Jonathan Ireland, William Martin,      :
Thomas Muldoon (in their official      :
capacity),                             :
                           Respondents :


                                      ORDER


            AND NOW, this 27th day of June, 2019, the amended preliminary
objections of Respondents Delaware Valley Regional Economic Development Fund
(Fund), John Coffman, Lauri A. Kavulich, Thomas Jay Ellis, Gaetano Piccirilli,
Albert Mezzaroba, Anthony DiSandro, Roseanne Pauciello, Jonathan Ireland,
William Martin, and Thomas Muldoon (Fund’s Officers/Directors) (collectively,
Respondents) to the complaint filed by Petitioner Pennsylvania Public Utility
Commission (PUC) in this original jurisdiction matter (Complaint) are hereby
OVERRULED, in part, SUSTAINED, in part, STRICKEN, in part, and
DISMISSED AS MOOT, in part, as follows:
            1.     Respondents’ preliminary objection to the PUC’s breach of
      fiduciary duty claim (Count I) under the “gist of the action” doctrine is
      SUSTAINED;
             2.     Respondents’ preliminary objection to the PUC’s breach of
      contract claim (Count II) on the basis that the PUC failed to state a claim that
      the Fund breached the agreements at issue is OVERRULED;
             3.     Respondents’ preliminary objection to the PUC’s breach of
      fiduciary duty claim (Count I) on the basis that the PUC failed to state a claim
      that the Fund’s Officers/Directors breached their fiduciary duties is
      DISMISSED AS MOOT;
             4.     Respondents’ preliminary objection to the PUC’s breach of
      contract claim (Count II) on the basis that such claim is barred by the statute
      of limitations is STRICKEN;
             5.     Respondents’ preliminary objection to the PUC’s breach of
      fiduciary duty claim (Count I) on the basis that such claim is barred by the
      statute of limitations is DISMISSED AS MOOT; and
             6.     Respondents’ preliminary objection to the PUC’s breach of
      fiduciary duty claim (Count I) on the basis that the PUC lacks standing is
      DISMISSED AS MOOT.
             The PUC’s preliminary objection to Respondents’ amended
preliminary objections is hereby SUSTAINED with respect to the PUC’s breach of
contract claim and DISMISSED AS MOOT with respect to the PUC’s breach of
fiduciary duty claim. Count I of the PUC’s Complaint is hereby DISMISSED, and
Respondents are directed to file an answer to Count II of the PUC’s Complaint
within thirty (30) days of the date of this Order.




                                           P. KEVIN BROBSON, Judge
