J   -A13031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

       DAVID HATCHIGIAN                                  IN THE SUPERIOR COURT
                                                            OF PENNSYLVANIA
                                     Appellant

                                v.

       PECO/EXELON AND MUNICIPAL
       INSPECTION CORPORATION,

                                     Appellees           No. 142 EDA 2018


                     Appeal from the Order Entered December 18, 2017
                    in the Court of Common Pleas of Philadelphia County
                     Civil Division at No(s): August 2016 No. 16080065
BEFORE:            SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                             FILED AUGUST 06, 2019

              David Hatchigian appeals pro se from the order entered on December

18, 2017, which dismissed with prejudice the fourth amended complaint he

filed against PECO Energy Cornpany/Exelonl (PECO) and Municipal Inspection

Corporation (MIC).2                  Upon review, we vacate the order and remand for

proceedings consistent with this memorandum.




1     "PECO    jurisdictional public utility providing electric and gas service in
              []   is a
the Commonwealth of Pennsylvania." Preliminary Objections, 10/30/2017, at
  24.
'11    According to Hatchigian, PECO "is a subsidiary of the Exelon
Corporation." Fourth Amended Complaint, 8/21/2017, at 22.         '11




2 According to Hatchigian, MIC "is a private third -party corporate entity,
approved by PECO to perform electrical inspections and provider of [sic]
certifications" and is located in Philadelphia. Fourth Amended Complaint,
8/21/2017, at 23.         '11




* Retired Senior Judge assigned to the Superior Court.
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                 This case arises from   a   dispute between Hatchigian and PECO. We

summarize the facts as set forth by Hatchigian in his fourth amended

complaint.            Hatchigian lives in and owns rental property in the city of

Philadelphia. He obtains his electricity from PECO.             It   is   Hatchigian's position

that PECO's "inadequate termination and reconnection procedures leave [him

and others similarly situated] at the mercy of PECO when bargaining [for]

their right to residential electricity."3 Fourth Amended Complaint, 8/21/2017,

at   '11   18.     Specifically, Hatchigian claimed that PECO "refused         a   reconnection

pursuant to          a   certification requirement within the Electric Service Tariff filed




3 Hatchigian initially filed this action on behalf of himself and commenced the
action as a claim in the Philadelphia Municipal Court, where judgment was
entered in favor of PECO. Hatchigian then appealed to the Court of Common
Pleas, where Hatchigian began adding language in the nature of a class action.
See Complaint, 12/1/2016, at           1 (stating that this action is on behalf of
                                             '11


himself and "other customers, landlords, and tenants whose electrical utility
services were terminated without warning, notice, or a hearing"). In his
second amended complaint, Hatchigian added numerous named plaintiffs,
including "John Does 1-20" and "all those similarly situated." Second Amended
Complaint, 5/11/2017, at 1. He maintains the same language in his fourth
amended complaint. See Fourth Amended Complaint, 8/21/2017, at 1.
Confusing matters further, Hatchigian claims this class action is being pursued
under the Federal Rules of Civil Procedure that govern class actions. See
Fourth Amended Complaint, 8/21/2017, at 69 (citing Federal Rules of Civil
                                                        '11


Procedure 23(a), 23(b)(2), and 23(b)(3)).               Class action lawsuits in
Pennsylvania state courts are governed by Pa.R.C.P. 1701-1717. In any
event, determining whether this case is or is not a class action is not necessary
to our ultimate conclusion, and for ease of reference, we will refer to
Hatchigian as the only plaintiff/appellant.


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by PECO and on file with the Pennsylvania Public Utility Commission [(PUC)]."4

Id. at   '11   50.

               According to Hatchigian, "[o]n or about May 18, 2016[,] Hatchigian

received several phone calls from two different tenants complaining that all

electric[al service] was shut off [in their apartments.]" Id. at                       '11   51. Hatchigian

then contacted PECO, and claimed he was told that "electrical [service] had

been disconnected inadvertently but was in the process of being restored that

same day, with no need for Hatchigian to file for [] exemptions to reintroduce

service." Id. at         '11   52. Hatchigian contended that "service was not restored as

promised" and PECO then "claimed that the apartment had been unoccupied

for six months and therefore                a    certificate from their electrical underwriter firm

was now required."                 Id. at       '11   53.    Hatchigian claimed that he "ordered

underwriter certification by [MIC]" and "paid                        a   total of $130 to MIC as          a


predicate for PECO's reintroduction of service."                     Id. at   '11   54. Then, according

to Hatchigian, PECO continued to refuse to reconnect electrical service until



4The PUC is a statutory entity created and governed by the Public Utility Code.
See 66 Pa.C.S. §§ 101-3316. Additionally,

         A     tariff  set of operating rules imposed by the State that a
                        is a
         public utility must follow if it wishes to provide services to
         customers. It is a public document which sets forth the schedule
         of rates and services and rules, regulations and practices
         regarding those services.

Sunrise Energy, LLC v. FirstEnergy Corp., 148 A.3d 894, 905 n.14 (Pa.
Cmwlth. 2016) (quoting PPL Electric Utilities Corp. v. Pennsylvania
Public Utility Commission, 912 A.2d 386, 402 (Pa. Cmwlth. 2006)
(emphasis added)).

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Hatchigian arranged for              a   "re -inspection of all of the electric wiring at the []

apartment." Id. at                 ¶ 57.     Hatchigian contended he complied with all

instructions, but due to the service interruption, he was then in violation of

various Philadelphia municipal codes. Hatchigian averred that due to the units

not having electrical service, despite having made all necessary payments to

PECO,     "new tenants were ultimately unable to move into the apartment on

time." Id. at        ¶ 59.       Hatchigian contended that

         [b]y terminating [his] electrical service without warning despite
         payment for service, [PECO was] negligent, breached the services
         contract and an implied covenant of good faith and fair dealing
         therein, violated [his] rights under and tortiously interfered with
         [his] leases, violated the UTPCPL,[5] deprived [him] of [his]
         property rights via an unconstitutional taking[,] and created a
         public nuisance.

Id. at   ¶   64. Hatchigian requested several forms of relief including $100,000

from PECO. Id. at            ¶   131.

             PECO filed          preliminary objections to Hatchigian's fourth amended

complaint.      It    is PECO's      position that Hatchigian's "underlying cause of action

is   the contention that [PECO's] processes and procedures are insufficient and,

by design, these policies and procedures cause damage to utility customers."

Preliminary Objections, 10/30/2017, at                 ¶ 23.   According to PECO, it is the PUC

that regulates the policies and procedures about which Hatchigian complains.


5 The UTPCPL is the Unfair Trade Practices and Consumer Protection Law. See
73 P.S. §§ 201-1 through 201-9.3. The purpose of the UTPCPL "is to protect
the public from-and indeed to eradicate-unfair or deceptive business
practices." Agliori v. Metro. Life Ins. Co., 879 A.2d 315, 318 (Pa. Super.
2005) (internal quotation marks omitted).
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Thus, according to PECO, the PUC was "the appropriate forum for the

adjudication of issues involving the reasonableness, adequacy and sufficiency

of public utility services."   Id. at   ¶ 33.   Therefore, PECO claimed that the PUC

has "primary and exclusive      jurisdiction" over Hatchigian's claims. Id. at     ¶ 36.

         On December 15, 2017, the          trial court sustained PECO's preliminary

objections in part, concluding it lacked subject matter jurisdiction over this

matter. Specifically, the trial court concluded that Hatchigian's complaint

"challenges the service termination procedure employed by PECO." Trial Court

Opinion, 8/27/2018, at 4. Although some of Hatchigian's causes of action

sound in tort and contract,         "[t]he overall thrust of the [c]omplaint           ...


challenges [PECO's] termination procedures." Id. at 5. Accordingly, the trial

court concluded that "the redress [Hatchigian] seeks          is   exclusively within the

PUC's   jurisdiction." Id. at 6.        Therefore, the trial court sustained PECO's

preliminary objections on this basis and dismissed Hatchigian's complaint.

         Hatchigian timely filed   a    notice of appeal. The trial court did not order

Hatchigian to file   a   statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925, but the trial court filed an opinion explaining its rationale for

dismissing the complaint. On appeal, Hatchigian first claims the trial court

erred in sustaining PECO's preliminary objections and dismissing the fourth

amended complaint for lack of subject matter jurisdiction. Hatchigian's Brief

at 14-52. We review this claim mindful of the following.

              On an appeal from an [o]rder sustaining preliminary
        objections, we accept as true all well -pleaded material facts set

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        forth in the appellant's complaint and all reasonable inferences
        which may be drawn from those facts. Where, as here, upholding
        sustained preliminary objections would result in the dismissal of
        an action, we may do so only in cases that are clear and free from
        doubt. Any doubt should be resolved by a refusal to sustain the
        objections.

              [I]t    well -settled that the question of subject matter
                        is
        jurisdiction may be raised at any time, by any party, or by the
        court sua sponte. Our standard of review is de novo, and our
        scope of review is plenary. Generally, subject matter jurisdiction
        has been defined as the court's power to hear cases of the class
        to which the case at issue belongs.

               Jurisdiction is the capacity to pronounce a judgment of the
        law on an issue brought before the court through due process of
        law. It is the right to adjudicate concerning the subject matter in
        a given case.... Without such jurisdiction, there is no authority to
        give judgment and one so entered is without force or effect. The
        trial court has jurisdiction if it is competent to hear or determine
        controversies of the general nature of the matter involved sub
       judice. Jurisdiction lies if the court had power to enter upon the
        inquiry, not whether it might ultimately decide that it could not
        give relief in the particular case.

Estate of Gentry v. Diamond Rock Hill Realty, LLC, 111 A.3d 194, 198
(Pa. Super. 2015) (internal citations and quotation marks       omitted).

          We begin with analyzing the trial court's conclusion that the PUC has

primary jurisdiction over the matters set forth in Hatchigian's fourth amended

complaint.

              It   iswell -settled law that initial jurisdiction over matters
        involving the reasonableness, adequacy or sufficiency of a public
        utility's service, facilities or rates is vested in the PUC and not in
        the courts.      Matters relating to the tariff, the necessity of
        equipment, deposits and the use of various types of services are
        peculiarly within the expertise of the [PUC] and, as such, are
        outside the original jurisdiction of the courts. When a utility's
        failure to maintain reasonable and adequate service is alleged,
        regardless of the form of the pleading in which the allegations are

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        couched, it is for the PUC initially to determine whether the service
        provided by the utility has fallen short of the statutory standard
        required of it.      It is equally clear that [t]he courts retain
        jurisdiction of a suit for damages based on negligence or breach
        of contract wherein a utility's performance of its legally imposed
        and contractually adopted obligations are examined and applied
        to a given set of facts. [O]nly where the available administrative
        remedies are adequate with respect to the alleged injury sustained
        and the relief requested should exhaustion of administrative
        remedies be required before seeking damages in court.

Morrow     v.   Bell Tel.   Co.    of Pa.,   479 A.2d 548, 554-55 (Pa. Super. 1984)

(internal citations and quotation marks omitted).

          Hatchigian contends that the matters set forth in the fourth amended

complaint "are almost entirely questions of law and statutory construction

which the [trial] court     is   well versed in adjudicating." Hatchigian's Brief at 18.

Hatchigian further argues that even if the PUC has subject matter jurisdiction

over some of the claims set forth, the trial court should have stayed the court

proceeding, rather than dismissing it in its entirety.       Id. at   21.

         The Commonwealth Court considered similar issues in                Pettko    v. Pa.

Am. Water Co. (PAWC), 39 A.3d 473 (Pa. Cmwlth. 2012).6 In that case,

Pettko, on behalf of himself and others similarly situated, filed           a   complaint in


6We recognize that cases decided by the Commonwealth Court are not binding
precedent on this Court. See Kraus v. Taylor, 710 A.2d 1142, 1144 (Pa.
Super. 1998) ("Although we frequently turn to the wisdom of our colleagues
on the Commonwealth Court for guidance, the decisions of that court are not
binding on this Court."). Pettko was initially appealed to this Court, but this
Court transferred it to the Commonwealth Court.           In its opinion, the
Commonwealth Court stated that there was "no basis" for it to assume
jurisdiction over the appeal, but since no party objected to the transfer, it
decided the case. Pettko, 39 A.3d at 476 n.2. Moreover, in its analysis, it
relied upon Pennsylvania Supreme Court and Superior Court cases.

                                              - 7 -
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the Court of Common Pleas of Washington County against PAWC challenging

its "billing practices, including practices relating to certain rate increases

approved by the PUC, and PAWC's alleged practice of rounding up, rather than

down, amounts for various components of its bills."      Id. at 475-76. Notably,
Pettko set forth claims for breach of contract, conversion, and violations of the

UTPCPL.

          PAWC filed   preliminary objections averring, inter alia, that the    PUC

"has primary and exclusive jurisdiction over Pettko's complaint."      Id. at 477.
The trial court agreed, "dismissed Pettko's complaint, and transferred the

matter to the PUC." Id. Pettko appealed.

          On appeal, the Commonwealth Court analyzed        first whether the   PUC

has primary jurisdiction. In doing so, it set forth the following.

              When a trial court calls upon an administrative agency to
        exercise its primary jurisdiction and evaluate a particular pertinent
        issue, and the agency renders a determination, that adjudicatory
        action has a binding, collateral effect upon the trial court's
        proceedings, unless a party successfully challenges the
        determination through the appeal process. Such determinations
        by administrative agencies, therefore, serve more than a merely
        advisory function. As we stated in County of Erie v. Verizon
        North, Inc., 879 A.2d 357 (Pa. Cmwlth. 2005), under the
        doctrine of primary jurisdiction, a trial court may "refrain from
        hearing a case" over which it might otherwise have jurisdiction,
        "where protection of the integrity of [a] regulatory scheme
        dictates that the parties preliminarily resort to the agency that
        administers the scheme for the resolution of disputes." County of
        Erie, 879 A.2d at 363. "Once the administrative tribunal has
        determined the issues within its jurisdiction, then the temporarily
        suspended civil litigation may continue, guided in scope and
        direction by the nature and outcome of the agency
        determination." Elkin[ v. Bell Telephone Co. of Pa., 420 A.2d
        371, 377 (Pa. 1980)].

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               Our Supreme Court, however, admonished trial courts not
        to abdicate judicial responsibility, and summarized the
        circumstances in which the primary jurisdiction doctrine applies,
        as follows:

              [W]here the subject matter is within an agency's
              jurisdiction and where it is a complex matter requiring
              special competence, with which the judge or jury
              would not or could not be familiar, the proper
              procedure is for the court to refer the matter to the
              appropriate     agency.     Also   weighing     in   the
              consideration should be the need for uniformity and
              consistency in agency policy and the legislative intent.
              Where, on the other hand, the matter is not one
              peculiarly within the agency's area of expertise, but is
              one which the courts or jury are equally well -suited to
              determine, the court must not abdicate its
              responsibility. In such cases, it would be wasteful to
              employ the bifurcated procedure of referral, as no
              appreciable benefits would be forthcoming.

        Id. (footnote omitted).
               Additionally, in County of Erie this Court confirmed the
        notion that the nature of the claims a plaintiff brings is not
        necessarily determinative of the question of whether the doctrine
        of primary jurisdiction applies. In County of Erie, we quoted the
        Superior Court's decision in Morrow, [supra], as follows:
        "[W]hen a utility's failure to maintain reasonable and adequate
        service is alleged, regardless of the form of the pleading in which
        the allegations are couched, it is for the PUC, initially, to determine
        whether the service provided by the utility has fallen short of the
        statutory standard required of it." County of Erie, 879 A.2d at
        364 (quoting Morrow, 479 A.2d at 550-51).

Pettko, 39 A.3d at 479-80 (some citations omitted).
        On appeal, Pettko claimed    that his "UTPCPL and common law claims do

not implicate any regulatory matters within the PUC's subject matter

competency." Id. at 480. He argued that PAWC's conduct was deceptive, and


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adjudicating such        a       claim does "not require the exercise of the PUC's

expertise." Id. PAWC countered that Pettko's claims regarding PUC's "power

to regulate the rates        a   utility charges to   a   customer and the power to prescribe

regulations and practices with which utilities must comply" implicates the

primary jurisdiction of the PUC. Id. at 481. In addition, both Pettko and PAWC

referenced provisions of the tariff in making their arguments.

        The Commonwealth Court analyzed the arguments presented and

concluded

        that the question of whether a utility's manner of billing is in
        compliance with a tariff is encompassed in the claims relating to
        billing practices that Pettko has raised in his complaint.... If the
        PUC reviews the tariff and PAWC's billing methodology and
        concludes that the billing practices are compliant with the tariff,
        the civil matter will be concluded, subject of course to appellate
        review of the PUC's decision.

Id. at 482-83.
        Thus, the Commonwealth Court determined that the PUC had primary

jurisdiction over the claim. The Commonwealth Court then went on to analyze

whether the      PUC also had        exclusive jurisdiction over the claim. "[U]nder the

doctrine of exhaustion of administrative remedies, an administrative agency

does not have exclusive jurisdiction unless it has the power to award relief

that will make     a   successful litigant whole."          Id. at 484.   The Commonwealth

Court concluded that although relief on some of Pettko's claims could be

provided by the PUC, it also concluded that relief on Pettko's UTPCPL claim

could not be granted by the PUC. The Commonwealth Court stated that, inter


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alia, the Public Utility Code "does not authorize the PUC to remedy fraudulent

conduct (unlike the UTPCPL)."Id. at 485. Thus, although the PUC had primary

jurisdiction over some of the claims set forth by Pettko, it did not have

exclusive jurisdiction over the UTPCPL claim "because the PUC has no power

to award relief, if it is appropriate, for that claim."         Id. Accordingly, the
Commonwealth Court affirmed the trial court's order, concluding that the trial

court acted appropriately by transferring the matter to the            PUC.

        Applying this framework, we now turn to the case sub judice. As set

forth by the trial court, Hatchigian's primary complaint          is   that   PECO           either

failed to apply the provisions of its tariff to him and others similarly situated

or that the provisions of the tariff itself were unreasonable. See Fourth

Amended Complaint,        1111   24-33 (alleging that "[s]ection 9.2 of PECO's tariff"

"gives inadequate notice" to customers; and that "PECO's interpretation of

this tariff includes an unreasonable certification requirement"); id. at                      ¶ 39

(alleging that "PECO's exclusive reliance on computerized systems to execute

its broadly[ -]worded tariff makes the risk of erroneous deprivation                            [of

electrical service] substantial"); id. at       ¶ 41   (alleging that "PECO        is    able to

collect customer funds pursuant to its tariff with impunity as if it were               a    public

agency, without any of the constraints in the [P]ublic [U]tility [C]ode;" and

id. at   ¶   46 (alleging that "PECO's one sided interpretation of the tariff

disregards the need to access channels for customer complaint in              a   meaningful

time and in    a   meaningful manner"). As the trial court concluded, it                is   these
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provisions that form the basis of Hatchigian's complaint.                          See Trial Court

Opinion, 8/27/2018, at            5   ("The overall thrust of the [c]omplaint         ...   challenges

[PECO's] termination procedures."). Hatchitgian's additional causes of action

all hinge on whether PECO either misinterpreted its tariff, applied the                       tariff to
Hatchigian unreasonably, or that the tariff itself                is   insufficient to provide due

process to PECO's customers.

          It    is   well -settled that determinations regarding the adequacy and

application of         a   public utility tariff fall within the expertise of the PUC. See

Optimum Image, Inc. v. Philadelphia Elec. Co., 600 A.2d 553, 557                                  (Pa.

Super. 1991) ("Matters relating to tariff             ...    are within the particular expertise

of the PUC."); Morrow, 479 A.2d at 550 (same).                           In his brief, Hatchigian

acknowledges his complaint is two -fold: "(1) PECO and agents interfere[d]

with lease arrangements entered into by the Mandlord and [t]enant classes

and (2) PECO fail[ed] its duty to maintain               a   reasonable standard of care when

performing the disconnection and reconnection terms of the [s]ervice

[a]greement." Hatchigian's Brief at 31.

          Instantly, there can be no doubt that resolution of the standard -of -care

issue will rely extensively upon whether the service agreement is                                    in

compliance with the tariff. Such                a   determination        is   within the particular

expertise of the           PUC.   See State Farm Fire & Cas. Co. v. PECO, 54 A.3d

921, 927 (Pa. Super. 2012) (internal quotation marks omitted) (pointing out

that it    is   the "PUC's authority to determine the reasonableness of tariffs" and


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that the   PUC has   the "power to assess whether such provisions are compatible

with the [Public Utility C]ode and policies of the commission and consistent

with its regulatory scheme").          Moreover, to the extent that PECO is in

compliance with the tariff, and the tariff is reasonable, PECO cannot be

unreasonably interfering with    a    landlord -tenant relationship. Accordingly, we

hold that the PUC has primary jurisdiction over Hatchigian's complaint.

        We now turn to consider whether the PUC has exclusive jurisdiction. As

in   Pettko, Hatchigian raises    a   claim that PECO has violated the UTPCPL.

Accordingly, we hold that Hatchigian's UTPCPL claim does not fall within the

exclusive jurisdiction of the PUC, and the trial court erred in dismissing

Hatchigian's fourth amended complaint with prejudice. See Pettko, supra.

In addition to the UTPCPL claim, Hatchigian also raises other claims, such as

an unconstitutional taking and public nuisance. To the extent that the PUC

finds in favor of Hatchigian and provides Hatchigian relief on the claims over

which it has jurisdiction, Appellant may then pursue his remaining claims in

the Court of Common Pleas.

        Based on the foregoing, we vacate the order of the trial court and

remand for the entry of an order transferring the case to the PUC.

        Order vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Jseph  D. Seletyn,
Prothonotary



Date: 8/6/19




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