         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alderwoods (Pennsylvania), Inc.,    :
a wholly owned subsidiary of Service:
Corporation International, t/a Burton
                                    :
L. Hirsch Funeral Home,             :
                   Petitioner       :
                                    :
            v.                      : No. 693 M.D. 2016
                                    : SUBMITTED: March 10, 2017
Pennsylvania Public Utility         :
Commission, The Honorable Gladys :
M. Brown, Chairman, The Honorable :
Andrew G. Place, Vice Chairman,     :
The Honorable John F. Coleman, Jr., :
Commissioner, The Honorable Robert :
F. Powelson, Commissioner, The      :
Honorable David W. Sweet,           :
Commissioner, and Duquesne Light :
Company,                            :
                  Respondents       :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                         FILED: May 10, 2017


            Alderwoods (Pennsylvania), Inc., a wholly owned subsidiary of
Service Corporation International, t/a Burton L. Hirsch Funeral Home
(Alderwoods), filed a petition for review in this Court’s original jurisdiction,
alleging that the Public Utility Commission (PUC) is without jurisdiction to
adjudicate a claim for damages even if such claim is limited to only an assessment
of liability. Alderwoods requested this Court issue an order: 1) declaring that the
PUC lacks jurisdiction to adjudicate any part of Alderwoods’ claims against
Duquesne Light Company (Duquesne Light) for liability and/or damages; 2)
prohibiting the PUC from exercising jurisdiction over any part of Alderwoods’
claims against Duquesne Light; and 3) remanding Alderwoods’ case to the Court
of Common Pleas of Allegheny County (trial court).


              Thereafter, Alderwoods applied for summary relief in this Court’s
original jurisdiction seeking an order declaring that the PUC is without jurisdiction
to hear Alderwoods’ tort claim for damages against Duquesne Light, barring the
PUC from adjudicating its dispute with Duquesne Light, and remanding the case to
the trial court for a hearing.         Duquesne Light and the PUC (collectively,
Respondents) filed preliminary objections to Alderwoods’ initial petition for
review in this Court’s original jurisdiction. The PUC’s preliminary objections
state that Alderwoods’ petition for review should be dismissed: (1) for lack of
subject matter jurisdiction; (2) for failure to exhaust its remedies at law; (3) as
legally insufficient pursuant to the “Law of the Case” doctrine; (4) as seeking an
advisory opinion that is not authorized under the Declaratory Judgments Act, 42
Pa. C.S. §§ 7531 - 7541; and (5) because Alderwoods has a complete and effective
remedy by appeal.        We grant the PUC’s preliminary objections and dismiss
Alderwoods’ petition for review in this Court’s original jurisdiction.1



       1
        Due to our determination, we need not address Duquesne Light’s preliminary objections
or Alderwoods’ application for summary relief.


                                             2
             The facts of the case are as follows. On January 9, 2009, a motor
vehicle hit and knocked over a utility pole behind the Burton L. Hirsch Funeral
Home (funeral home) on Forward Avenue in Pittsburgh. The funeral home was
the only building connected by electrical wiring to the downed utility pole. Due to
the accident, high voltage lines came in contact with low voltage lines, sending a
surge of high voltage into the funeral home’s electric panel box and damaging the
funeral home’s circuit breakers.


             Duquesne Light did not inspect the funeral home’s equipment or warn
the funeral home that it needed to have the equipment inspected and certified by a
third party before the power was restored.       Several hours after the accident,
Duquesne Light restored electrical power to the funeral home. Thereafter, the
electrical current heated the funeral home’s electric panel box and ignited the box’s
wood backing. The fire destroyed the funeral home and everything inside.


             Alderwoods filed a complaint against Duquesne Light with the trial
court. Duquesne Light filed a motion for summary judgment, asserting that it was
under no duty in tort to Alderwoods when it restored electrical power to the funeral
home. The trial court granted the motion for summary judgment and Alderwoods
appealed to the Superior Court. The Superior Court reversed the trial court and
Duquesne Light appealed to the Supreme Court. The Supreme Court granted
Duquesne Light’s petition for allowance of appeal and, on December 15, 2014, the
Supreme Court affirmed, stating that:

             the Superior Court did not err to the extent that it
             recognized a duty, on the part of an electric service
             provider, to take reasonable measures to avert harm in a

                                         3
              scenario in which the utility has actual or constructive
              knowledge of a dangerous condition impacting a
              customer’s electrical system, occasioned by fallen and
              intermixed electrical lines proximate to the customer’s
              premises. Furthermore, we offer no opinion as to
              whether Duquesne Light had actual or constructive
              knowledge of an unreasonable risk in the present
              scenario….

Alderwoods (Pennsylvania), Inc. v. Duquesne Light Company, 106 A.3d 27, 42
(Pa. 2014).


              Upon remand to the trial court, Alderwoods filed its second amended
complaint and Duquesne Light requested the trial court bifurcate the claim under
the doctrine of primary jurisdiction and transfer Alderwoods’ claim to the PUC for
a liability-only adjudication, contending that Alderwoods’ claim required the
PUC’s expertise.     Alderwoods objected, stating that the PUC does not have
jurisdiction over its claim for damages even if the PUC’s adjudication is limited to
only an assessment of liability. The trial court granted Duquesne Light’s motion to
bifurcate and denied Alderwoods’ motion for reconsideration/certification of an
interlocutory appeal.


              On January 7, 2016, Alderwoods filed its complaint with the PUC.
On January 8, 2016, Alderwoods filed preliminary objections to the complaint for
lack of jurisdiction. On April 5, 2016, the PUC’s Administrative Law Judge (ALJ)
overruled Alderwoods’ preliminary objections to the PUC’s jurisdiction. On April
22, 2016, Alderwoods petitioned the PUC for interlocutory review. On September
15, 2016, the PUC, with one Commissioner dissenting, denied Alderwoods’
petition. On October 13, 2016, Alderwoods requested the PUC amend its opinion

                                         4
and order to certify an interlocutory appeal of the jurisdictional issue to this Court.
The PUC did not act on this motion within 30 days; thus, it was deemed denied.
On December 8, 2016, Alderwoods petitioned this Court for review, seeking leave
to file an interlocutory appeal of the PUC’s refusal to certify an interlocutory
appeal. This petition was denied by order of this Court dated December 29, 2016.


               On December 13, 2016, Alderwoods filed the instant petition for
review in this Court’s original jurisdiction.2 On December 30, 2016, Alderwoods
filed the application for summary relief. In January 2017, Respondents filed
preliminary objections to Alderwoods’ petition for review.                        Alderwoods’
application for summary relief and Respondents’ preliminary objections to
Alderwoods’ petition for review are now before this Court for disposition.


               When ruling on preliminary objections, this Court must accept all
well-pled allegations of material fact and all reasonable inferences therefrom as
true. Pittsburgh Board of Public Education v. Pennsylvania Human Relations
Commission, 820 A.2d 838, 840 (Pa. Cmwlth. 2003). We will grant preliminary
objections only when we are certain that the law will not permit recovery and we


       2
          On December 16, 2016, Alderwoods requested the ALJ stay the underlying case until
this Court resolved all of the issues presently before it. On March 7, 2017, the ALJ denied
Alderwoods’ request. On March 10, 2017, Alderwoods filed an application for stay of the action
pursuant to Pa. R.A.P. 1781 before the PUC. Respondents filed preliminary objections, arguing
that Pa. R.A.P. 1781 does not apply in original jurisdiction matters. On March 20, 2017, the ALJ
scheduled a prehearing conference for May 10, 2017. On March 28, 2017, this Court granted the
PUC’s preliminary objections and dismissed Alderwoods’ application for stay without prejudice
to file a request for a preliminary injunction. On March 31, 2017, Alderwoods filed an
application for special relief in the nature of a preliminary injunction of proceedings before the
PUC. Based on the following opinion, we dismiss this application as moot.


                                                5
will resolve any doubt by refusing to sustain them. Id. “In matters involving
administrative agencies, this Court’s original jurisdiction is limited to those actions
not within its appellate jurisdiction.” Id. at 841.


             The trial court has original jurisdiction to entertain an action for
damages against Duquesne based on Duquesne’s failure to provide adequate
service. Poorbaugh v. Pennsylvania Public Utility Commission, 666 A.2d 744,
748 (Pa. Cmwlth. 1995). However, the trial court is authorized to transfer a
dispute to the PUC. Id. The doctrine of primary jurisdiction creates a workable
relationship between the trial court and the PUC wherein the trial court is given the
benefit of the PUC’s experience and expertise in complex areas of which the trial
court is unfamiliar. Id. at 749.


             Alderwoods relies on Poorbaugh to support its assertion that the PUC
lacks jurisdiction. In Poorbaugh, this Court reviewed the PUC’s final order on
appeal, reviewed the record, weighed the various considerations with respect to
jurisdiction, and determined that Poorbaugh’s claims should have been before the
trial court, not the PUC. In this case, however, unlike Poorbaugh, the matter is
still before the PUC. The PUC merely denied Alderwoods’ preliminary objections
to its jurisdiction; it did not create a record on the merits or issue a final order.
Thus, Alderwoods’ request for a declaration that the PUC is without jurisdiction to
adjudicate the claims in this action is premature. Alderwoods needs to develop a
record on the merits before the PUC and exhaust its administrative remedies prior
to seeking review in this Court’s appellate jurisdiction. See Pittsburgh Board of
Public Education, 820 A.2d at 841-42 (determining that “this [C]ourt’s original


                                           6
jurisdiction is limited to those actions not within [our] appellate jurisdiction”; and
that if an agency’s jurisdiction is unclear, “‘the courts… have repeatedly refrained
from interfering with the due course of administrative action, allowing the agency
to determine the extent of its jurisdiction in the first instance’” (citation omitted)).
Thus, this case is not within this Court’s original jurisdiction because it was
initiated by the filing of complaints with the trial court and the PUC and ultimately
will be subject to this Court’s appellate review. See id. at 841.


             Accordingly, we grant the PUC’s preliminary objections and dismiss
Alderwoods’ petition for review in this Court’s original jurisdiction. We further
dismiss Alderwoods’ application for summary and special relief and Duquesne
Light’s preliminary objections as moot.




                                        __________________________________
                                        JULIA K. HEARTHWAY, Judge




                                           7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alderwoods (Pennsylvania), Inc.,    :
a wholly owned subsidiary of Service:
Corporation International, t/a Burton
                                    :
L. Hirsch Funeral Home,             :
                   Petitioner       :
                                    :
            v.                      : No. 693 M.D. 2016
                                    :
Pennsylvania Public Utility         :
Commission, The Honorable Gladys :
M. Brown, Chairman, The Honorable :
Andrew G. Place, Vice Chairman,     :
The Honorable John F. Coleman, Jr., :
Commissioner, The Honorable Robert :
F. Powelson, Commissioner, The      :
Honorable David W. Sweet,           :
Commissioner, and Duquesne Light :
Company,                            :
                  Respondents       :

                                   ORDER


            AND NOW, this 10th day of May, 2017, we hereby grant the
Pennsylvania Public Utility Commission’s preliminary objections and dismiss the
petition for review filed by Alderwoods (Pennsylvania), Inc., a wholly owned
subsidiary of Service Corporation International, t/a Burton L. Hirsch Funeral
Home (Alderwoods). We further dismiss Alderwoods’ applications for summary
and special relief and Duquesne Light Company’s preliminary objections as moot.


                                        __________________________________
                                        JULIA K. HEARTHWAY, Judge
